Individual criminal responsibility in the execution of a "joint criminal enterprise" in the jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia

International Criminal Law Review

Volumn 6, Issue 1, 2006, Pages 63-120

  Bogdan, Attila ^a,b  

^a Attorney at Law   (United States)

^b Sex Crimes Division   (United States)

Author keywords

[No Author keywords available]

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EID: 68049086088     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181206777066727     Document Type: Article

References (366)

1. M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 294-300, 375 (2nd rev. ed., 1999) (hereinafter "Bassiouni, Crimes Against Humanity").
2. See also, M. Cherif Bassiouni, A Functional Approach to "General Principles of International Law, 11 Michigan Journal of International Law 768-818(1990) ("Bassiouni, General Principles");
3. Discussion of Bin Cheng, in The Meaning and Scope of Article 38(1) (c)
4. of the Statute of the International Court of Justice, 38 Grotius Society Transactions for the Year I, 125(1952).
5. The International Military Tribunal at Nuremberg, created by the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945;
6. Charter of the International Military Tribunal, 59 Stat. 1544, 1546
7. 82 U. N. T. S. 279, 284 (hereinafter "Nuremberg Tribunal Charter");
8. Charter of the International Military Tribunal for the Far East, Apr. 26, 1946, T. I. A. S. No. 1589, at 11
9. 4 Bevans 27 (hereinafter "Tokyo Tribunal Charter").
10. See Nuremberg Tribunal Charter, supra note 2, at Art. 6. The same provision was contained in Art. 6 of the Tokyo Tribunal Charter. Tokyo Tribunal Charter, supra note 2, at Art. 6.
11. The judgment provided, in relevant part, that "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Nazi Conspiracy and Aggression, Opinion and Judgment of the IMT 66(1947).
12. Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G. A. Res. 95 (I), U. N. Doc. A/236(146).
13. Statute of the International Tribunal for the Former Yugoslavia, S. C. Res. 808, UN SCOR, 48th Sess., 3217th Mtg., U. N. Doc. S/RES/808(1993) ("Yugoslav Tribunal Statute"), at Art. 7(1).
14. Statute of the International Tribunal for Rwanda, S. C. Res. 955, UN. SCOR, 49th Sess., 3453d mtg., U. N. Doc. S/RES/955(1994), at Art. 6(1).
15. Rome Statute of the International Criminal Court, A/Conf.183/9, July 17, 1998 ("Rome Statute"), at Art. 25.
16. See Bassiouni, Crimes Against Humanity, supra note 1, at 373-74, 394-410.
17. See M. Cherif Bassiouni, Introduction to International Criminal Law (2003) ("Bassiouni, Introduction"), at Ch.1 and Ch.4. Prof. Bassiouni notes that the general part of criminal law usually "defines the basic principles applicable to the determination of responsibility and punishment."
18. See Nuremberg Tribunal Charter, supra note 2;
19. Tokyo Tribunal Charter, supra note 2.
20. See Bassiouni, Introduction, supra note 10, at 267 (noting that the failure to include a general part (or a procedural part) in the Statutes was due to the drafters' desire to obtain quick approval of the Statutes before the UN Security Council.) According to Prof. Bassiouni, this was due to political considerations, meaning that the inclusion of more detailed provisions related to the general and procedural part would have caused a significant delay in the start of the Tribunals' proceedings).
21. See also, Pierre Hazan, Justice in Time of War (2004).
22. For a discussion of principles of legality, and the conformance of "joint criminal enterprise" to principles of legality see infra section entitled Analysis. At present, it should be noted that the practice of affording the judges the discretion to formulate rules applicable to the proceedings is particularly troublesome for positivist national legal systems, as well as for the majority of civil law systems in the world. See Bassiouni, Crimes Against Humanity supra note 1, at Ch.4 and 394-406. See also infra section entitled Analysis.
23. See infra sub-section entitled use of "Joint Criminal Enterprise" at the Yugoslav Tribunal Violates Principles of Legality, contained in section entitled Analysis.
24. Bassiouni, Introduction, supra note 10, at 180.
25. For commentaries on this and other articles of the Rome Statute see Commentary on the Rome Statute of the International Criminal Court: Observer's Notes, Article by Article (Otto Triffterer ed., 1999);
26. International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999).
27. See Bassiouni, Introduction, supra note 10, at 260.
28. See also, M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell International Law Journal 443, 454(1999) ("Bassiouni, Negotiating the Treaty of Rome").
29. Bassiouni, Introduction, supra note 10, at 260
30. citing to Bassiouni, Negotiating the Treaty of Rome, supra note 23, at 454.
31. Bassiouni, Introduction, supra note 10, at 260-61. For these and other problems related to the "general part" of the Rome Statute
32. see Bassiouni, Negotiating the treaty of Rome, supra note 21 and sources cited supra note 17.
33. See Bassiouni, Introduction, supra note 10, at 262 (noting that the general part provisions will not in and of themselves be conclusive as to ICL's general part, unless they are buttressed by other evidence that a particular norm is part of customary international law or derives form general principles of law).
34. Statute of the International Court of Justice, Art 38(1) (b)
35. 59 Stat 1031, 1061, Treaty Serial No 993(1945) ("International Court of Justice Statute").
36. See Columbian-Peruvian Asylum Case, 1950 I. C. J. Rep. 26, 276 (Nov. 20) (holding that "[t]he party which relies on a [regional] custom... must prove that this custom is established in such a manner that it has become binding on the other Party. The Columbian government must prove that the rule invoked by it is in accordance with the constant and uniform usage practiced by states in question, and that this usage is the expression of a right appertaining to the state granting asylum and a duty incumbent on the territorial state.)
37. See Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987);
38. Ian Brownlie, Principles of Public International Law 4-11 (5th ed. 1998);
39. Anthony A. D'Amato, The Concept of Custom in International Law (1971);
40. Michael Akehurst, Custom as A Source of International Law, 47 Brit. Y. B. Int'l L. 1(1974).
41. Bassiouni, Crimes Against Humanity, supra note 1, at 289.
42. North Sea Continental Shelf Cases, 1969 I. C. J. 3, 44 (Feb. 20).
43. North Sea Continental Shelf Cases, 1969 I. C. J. 3, 44 (Feb. 20), Summary, available at http://www.icj-cij.org/icjwww/idecisions/isummaries/ icssummary690220.htm (last visited October 30, 2005).
44. North Sea Continental Shelf Cases, 1969 I. C. J. 3, para. 80 (Feb. 20).
45. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V United States) Merits, 1986 I. C. J. a14 (June 27, 1986, at 98.
46. See Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989) cited in Bassiouni, Introduction, supra note 10, at 222. On the issue of custom in international law
47. see also Anthony A. D'Amato, The Concept of Custom in International Law (1971);
48. Michael Akehurst, Custom as A Source of International Law, 47 British Yearbook of International Law 1(1974).
49. See M. Cherif Bassiouni, A Functional Approach to "General Principles" of International Law, 11 Michigan Journal of International Law 768-818(1990).
50. See Rudolf Schlesinger, Research on the General Principles of Law Recognized by Civilized Nations, 51 American Journal of International Law 734, 739(1957)
51. cited in Bassiouni, Crimes Against Humanity, supra note 1, at 285.
52. On the various definitions of "general principles" see Bassiouni, Crimes Against Humanity, supra note 1, at 284-85 (fns. 10-14) and sources cited therein.
53. See PCIJ Statute Art. 38 I (3) and International Court of Justice Statute, Art. 38(1) (c).
54. See Bassiouni, Crimes Against Humanity, supra note 1, at 288.
55. S. S. Lotus Case, 1927 P. C. I. J. (Ser. A) No. 10, at 4. The main issue in the case revolved around the propriety of Turkey's exercise of jurisdiction over an officer of a French ship that has collided with a Turkish vessel.
56. Id. at 21 cited in Bassiouni, Crimes Against Humanity, supra note 1, at 287.
57. This concept has been referred to as "universality". In light of the growth in the number of countries from 1927(74) to the present (192 independent states), authors have suggested the use of a modified method which essentially searched a representative sample of national laws of those states which most represent a given legal system. Bassiouni, Crimes Against Humanity, supra note 1, at 296-97'.
58. See Bassiouni, Crimes Against Humanity, supra note 1, at 127-40
59. cited in Bassiouni, Introduction, supra note 10, at 266.
60. Chorzov Factory (Claim for Indemnity) Case, 1928 P. C. I. J (Ser. A) No. 17, at 4. The PCIJ noted, in relevant part, that "[t]he essential principle contained in the actual notion of an illegal act-a principle which seems to be established by international practice and in particular by decisions of arbitral tribunals - is that reparations must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation...."
61. See, e.g., Serbian Loans (Judgment), 1929 P. C. I. J. (Ser. A) Nos. 20/21, at 39-40;
62. Legal Status of Eastern Greenland, 1933 P. C. I. J. (Ser. A/B) No. 44, at 4, 24).
63. German Interests in Polish Upper Silesia, 1925 P. C. I. J. (Ser.1), No. 6, at 4, 19. In many of these cases, however, the PCIJ has not specifically expressed the way how it identified the general principles it relied on in its decision.
64. See Bassiouni, Crimes Against Humanity, supra note 1, at 286.
65. See Bassiouni, Crimes Against Humanity, supra note 1, at 294-300.
66. See also., Anthony A. D'Amato, The Concept of Custom in International Law (1971);
67. Michael Akehurst, Custom as A Source of International Law, 47 British Yearbook of International Law 1(1974);
68. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989);
69. Bassiouni, General Principles, supra note 32.
70. Bassiouni, Crimes Against Humanity, supra note 1, at 294.
71. The Lotus Case (France v. Turkey), 1927 P. CI. J. (Ser. A) No. 10, at 25.
72. See also, Chorzov Factory (Claim for Indemnity), 1928 P. C. I. J (Ser. A) No. 17, at 4 (identifying the principle of reparations, established by "international practice").
73. See Nottebohm case, 1955 International Court of Justice 4, at 22;
74. North Continental Shelf Case, 1969 ICJ 101.
75. Nottebohm case, 1955 ICJ 4, at 22 (the court referred to the "practice of States, to arbitral and judicial decisions and to the opinions of writers").
76. See 1887 Foreign Relations of the United States 859-67(1888)
77. The Cutting Case, 1887 Foreign Relations of the United States 751(1888)
78. cited in Bassiouni, Crimes Against Humanity, supra note 1, at 295.
79. Bassiouni, Crimes Against Humanity, supra note 1, at 295.
80. The Cutting Case, supra note 52, at 754-55, 781-817.
81. See The Scotia, 81 U. S. 170(1871);
82. The Paquette Habana, 175 U. S. 677(1899), at 699-700
83. cited in Bassiouni, Crimes Against Humanity, supra note 1, at 295.
84. Such as the ILC 1991 Draft Code of Crimes Against the Peace and Security of Mankind. See 11 Nouvelles Etudes Penales (1993) for commentaries on the 1991 ILC Draft Code.
85. See Bassiouni, Introduction, supra note 10, at 263.
86. Bassiouni, Crimes Against Humanity supra note 1, at 382. For a discussion of this concept in the U. S. legal system
87. see Wayne R. La Fave, Criminal Law 663-721 (4th ed. 2003) (hereinafter "La Fave, Criminal Law").
88. Bassiouni, Crimes Against Humanity, supra note 1, at 382.
89. See Nuremberg Tribunal Charter, supra note 2, at art. 6.
90. See Bassiouni, Crimes Against Humanity, supra note 1, at 382.
91. See Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Yearbook of the International Law Commission, 1950, vol. II., at Principle VII. Prof. Bassiouni notes that this is contrary to the express linkage of conspiracy and crimes against peace in the Nuremberg Tribunal Charter, and attributes this error to the subtle differences between individual responsibility for participating in the "common plans" of aggression and responsibility for membership in "criminal organizations" which at the Nuremberg Tribunal included all three crimes defined in the Charter.
92. Bassiouni, Crimes Against Humanity, supra note 1, at 382. (The Nuremberg Principles are available at http://www.un.org/law/ilc/texts/nurnberg.htm., last visited November 5, 2005).
93. Bassiouni, Crimes Against Humanity, supra note 1, at 382.
94. In article II, Sec. 2, CCL No. 10 provides: "Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a) if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country."
95. CCL No. 10, at art. II, Sec. 2.
96. Bassiouni, Crimes Against Humanity, supra note 1, at 383 (noting that the provision assimilates those who have conspired to have the crime committed, ordered it, performed it, aided and abetted in its planning, preparation, performance, and concealment, and those who voluntarily participated in a "criminal organization").
97. See Bassiouni, Crimes Against Humanity supra note 1, at 383 (noting that the drafters of CCL No. 10 wanted to avoid making such legal distinctions because these would have "mired these trials in technical arguments for years", which would have conflicted with the Allied goal of having a swift process to deal with the accused German war criminals). The concept of participatory criminal responsibility included in CCL No. 10 was welcomed by prosecutors and judges of the subsequent proceedings because it promised to provide maximum flexibility and swift adjudications.
98. See Bassiouni, Introduction, supra note 10, at 263.
99. See Bassiouni, Crimes Against Humanity supra note 1, at 398.
100. Yugoslav Tribunal Statute, supra note 6, at art. 7(1).
101. Report of the Secretary-General pursuant to Paragraph 2 of the Security Council Resolution 808(1993), UN. SCOR, 48th Sess., U. N. Doc. S/25704(1993) ("Report of the Secretary-General")
102. Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber II Judgment (May 7, 1997) (hereinafter "Tadic Trial Chamber Judgment")
103. and Prosecutor v. Tadic, Case No. IT-94-1-A, (Appeals Chamber Judgment) (July 15, 1999) ("Tadic Appeals Judgment").
104. See Tadic Trial Chamber Judgment, at paras. 664-692.
105. The cases reviewed by the Trial Chamber included: Trial of Martin Gottfried Weiss and 39 Others Vol. XI Law Reports 5. and Vol. XI Law Reports 97-98;
106. Vol. XV Law Reports 89;
107. Vol. I Law Reports 43;
108. Trial of Joseph Altstötter and Others ("Justice case") and United States of America v. Wilhelm List ("Hostage case")
109. Vol. XI Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10;
110. Trial of Franz Schonfeld and Nine Others, Vol. XI Law Reports 69-70;
111. Trial of Burn Tesch and Two Others ("Zyklon B case");
112. Trial of Otto Sandrock and Three Others, Vol. I Law Reports 35, 43(1947);
113. Case. no. 12-489, United States v. Kurt Goebell et al ("Borkum Island" case), Report, Survey of the Trials of War Crimes Held at Dachau, Germany, 2-3 (15 Sept. 1948).
114. Another case that followed the reasoning of the Tadic Trial Chamber was Prosecutor v. Delacic et al. Trial Judgment para. 325-328 (Nov. 16, 1998) (noting that where it is found that the individuals acted in accordance with a set plan "or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and directly and substantially contribute to, the realization of this purpose may be held criminally responsible under Article 7(1) for the resulting criminal conduct").
115. Tadic Appeals Judgment, at para. 185.
116. Tadic Appeals Judgment, at para. 185.
117. Tadic Appeals Judgment, at para. 185.
118. Tadic Appeals Judgment, at para. 187.
119. Tadic Appeals Judgment, at para. 188.
120. Tadic Appeals Judgment, at pars. 191, 193.
121. Tadic Appeals Judgment, at pars. 193, 195, 204, 225.
122. Tadic Appeals Judgment, at pars. 196, 202-204.
123. Tadic Appeals Judgment, at para. 203.
124. Tadic Appeals Judgment, at para. 199.
125. Tadic Appeals Judgment, at para. 204.
126. Tadic Appeals Judgment, at para. 220.
127. Tadic Appeals Judgment, at para. 185.
128. Tadic Appeals Judgment, at para. 189.
129. Tadic Appeals Judgment, at para. 190
130. citing to Report of the Secretary-General, supra note 77, at para. 54.
131. Tadic Appeals Judgment, at para. 190.
132. Tadic Appeals Judgment, at para. 191. In the same paragraph, the Appeals Chamber noted that: "most of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less - or indeed no different - from that of those actually carrying out the acts in question. "
133. Tadic Appeals Judgment, at para. 192.
134. Tadic Appeals Judgment, at para. 194.
135. Tadic Appeals Judgment, at para. 195.
136. Tadic Appeals Judgment, at para. 195.
137. Tadic Appeals Judgment, at para. 196.
138. Tadic Appeals Judgment, at para. 196.
139. Tadic Appeals Judgment, at para. 197
140. citing to Trial of Otto Sandrock and Three Others, British Military Court for the Trial of War Criminals, held at the Court House, Almelo, Holland, on 24th-26th November
141. 1945, UNWCC, vol. I, p. 35.
142. Tadic Appeals Judgment, at para. 197.
143. Tadic Appeals Judgment, at para. 197. In addition, the Appeals Chamber also noted that in the Hoelzer et al. case, brought before a Canadian military court, in his summing up the Judge Advocate spoke of a "common enterprise" with regard to the murder of a Canadian prisoner of war by three Germans, and "emphasised that the three all knew that the purpose of taking the Canadian to a particular area was to kill him."
144. Tadic Appeals Judgment, at para. 197
145. citing to Hoelzer et al. Canadian Military Court, Aurich, Germany, Record of Proceedings 25 March-6 April 1946, vol. I, pp. 341, 347, 349 (RCAF Binder 181.009 (D2474).
146. Tadic Appeals Judgment, at para. 198
147. citing to Trial of Gustav Alfred Jepsen and others, Proceedings of a War Crimes Trial held at Luneberg, Germany (13-23 August, 1946), Judgment of 24 August 1946.
148. Tadic Appeals Judgment, at para. 198. The Appeals Chamber also noted the British Judge Advocate's statement in the Schonfeld case that: "if several persons combine for an unlawful purpose or for a lawful purpose to be effected by unlawful means, and one of them in carrying out that purpose, kills a man, it is murder in all who are present [...] provided that the death was caused by a member of the party in the course of his endeavours to effect the common object of the assembly."
149. Tadic Appeals Judgment, at para. 198
150. citing to Trial of Franz Schonfeld and others, British Military Court, Essen, June 11th-26th, 1946, UNWCC, vol. XI, p. 68.
151. Tadic Appeals Judgment, at para. 199.
152. Tadic Appeals Judgment, at para. 199
153. citing to Trial of Feurstein and others, Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24 August, 1948), Judgment of 24 August 1948. The Appeals Chamber noted that in this case the Judge Advocate adopted the approach suggested by the Prosecutor and stressed that: "[...] the requirement that an accused, before he can be found guilty, must have been concerned in the offence. [T]o be concerned in the commission of a criminal offence [...] does not only mean that you are the person who in fact inflicted the fatal injury and directly caused death, be it by shooting or by any other violent means; it also means an indirect degree of participation [...]. [I] n other words, he must be the cog in the wheel of events leading up to the result which in fact occurred. He can further that object not only by giving orders for a criminal offence to be committed, but he can further that object by a variety of other means [...]."
154. Tadic Appeals Judgment, at para. 199
155. citing to Trial of Feurstein and others, Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24 August, 1948), Judgment of 24 August 1948, at p. 4.
156. Tadic Appeals Judgment, at para. 199.
157. Tadic Appeals Judgment, at para. 199.
158. Tadic Appeals Judgment, at para. 200
159. citing to The United States of America v. Otto Ohlenforf et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, vol. IV, p. 3.
160. Tadic Appeals Judgment, at para. 200.
161. Tadic Appeals Judgment, at para. 201.
162. Tadic Appeals Judgment, at para. 201
163. citing to the following decisions of the Italian Court of Cassation: Annalberti et al., 18 June 1949, in Giustizia penale 1949, Part II, col. 732, no. 440;
164. and the decision of 10 August 1948 of the German Supreme Court for the British Zone in K. and A., in Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen, vol. I, pp. 53-56;
165. the decision of the District Court (Landgericht) of Cologne of 22 and 23 January 1946 in Hessmer et al., in Justiz und NS-Verbrechen, vol. I, pp. 13-23, at pp. 13, 20;
166. as well as the decision of the District Court of Braunschweig of 7 May 1947 in Affeldt, ibid., p. 383-391, 389.
167. Tadic Appeals Judgment, at para. 202.
168. Tadic Appeals Judgment, at para. 202.
169. Tadic Appeals Judgment, at para. 202
170. citing to Trial of Martin Gottfried Weiss and thirtynine others, General Military Government Court of the United States Zone, Dachau, Germany, 15th November-13th December, 1945, UNWCC, vol. XI, p. 5.
171. Tadic Appeals Judgment, at para. 202
172. citing to Trial of Josef Kramer and 44 others, British Military Court, Luneberg, 17th September-17th November, 1945, UNWCC, vol. II, p. 1.
173. Tadic Appeals Judgment, at para. 202
174. citing to Dachau Concentration Camp case, UNWCC, vol. XI, p. 14.
175. Tadic Appeals Judgment, at para. 202
176. citing to Belsen case, UNWCC, vol. II, p. 121. The Appeals Chamber also noted that the convictions of several of the accused appear to have been explicitly based upon these criteria.
177. Tadic Appeals Judgment, at para. 203.
178. Tadic Appeals Judgment, at para. 203.
179. Tadic Appeals Judgment, at para. 203. The Appeals Chamber felt that it was important to note that, "in these cases, the requisite intent could also be inferred from the position of authority held by the camp personnel."
180. Tadic Appeals Judgment, at para. 204.
181. Tadic Appeals Judgment, at para. 205.
182. Tadic Appeals Judgment, at para. 206.
183. Tadic Appeals Judgment, at para. 207
184. citing to Trial of Erich Heyer and six others, British Military Court for the Trial of War Criminals, Essen, 18th-19th and 21st-22nd December, 1945, UNWCC, vol. I, p. 88, at p. 91.
185. Tadic Appeals Judgment, at para. 207.
186. Tadic Appeals Judgment, at para. 207.
187. Tadic Appeals Judgment, at para. 207.
188. Tadic Appeals Judgment, at para. 208.
189. Tadic Appeals Judgment, at para. 209.
190. Tadic Appeals Judgment, at para. 210.
191. Tadic Appeals Judgment, at para. 210.
192. Tadic Appeals Judgment, at para. 210 (emphasis in original).
193. Tadic Appeals Judgment, at para. 210.
194. Tadic Appeals Judgment, at para. 212. The Appeals Chamber further inferred from this case that "all the accused found guilty were held responsible for pursuing a criminal common design, the intent being to assault the prisoners of war. However, some of them were also found guilty of murder, even where there was no evidence that they had actually killed the prisoners. Presumably, this was on the basis that the accused, whether by virtue of their status, role or conduct, were in a position to have predicted that the assault would lead to the killing of the victims by some of those participating in the assault."
195. Tadic Appeals Judgment, at para. 213.
196. Tadic Appeals Judgment, at para. 217.
197. Tadic Appeals Judgment, at para. 218.
198. Tadic Appeals Judgment, at para. 218.
199. Tadic Appeals Judgment, at para. 220.
200. Tadic Appeals Judgment, at para. 220.
201. Tadic Appeals Judgment, at para. 220.
202. Tadic Appeals Judgment, at para. 221 citing to International Convention for the Suppression of Terrorist Bombing (adopted by consensus by the United Nations General Assembly through resolution 52/164 of 15 December 1997 and opened for signature on 9 January 1998).
203. Tadic Appeals Judgment, at pars. 221-22.
204. Tadic Appeals Judgment, at para. 223.
205. Tadic Appeals Judgment, at para. 224.
206. Tadic Appeals Judgment, at para. 224 (citations to footnotes omitted).
207. Tadic Appeals Judgment, at para. 225.
208. Tadic Appeals Judgment, at para. 225.
209. Tadic Appeals Judgment, at para. 225. Here, the Appeals Chamber recognizes that "joint criminal enterprise" has not become a "general principle" in international law. The problematic finding that it did become a rule of customary international law is discussed infra in section Analysis ("Joint Criminal Enterprise" is Not Firmly Established in Customary International Law).
210. Tadic Appeals Judgment, at para. 225.
211. Tadic Appeals Judgment, at para. 226.
212. See also, Prosecutor v. Furundzija, Appeals Chamber Judgment (July 21, 2000) (hereinafter "Furundzija Appeals Judgment"), at paras. 120-21.
213. Tadic Appeals Judgment, at para. 227 (emphasis in original).
214. Tadic Appeals Judgment, at para. 228.
215. Tadic Appeals Judgment, at para. 228 (emphasis in original).
216. Tadic Appeals Judgment, at para. 229.
217. In addition, the Appeals Chamber then concluded that the accused: "actively took part in the common criminal purpose to rid the Prijedor region of the non-Serb population, by committing inhumane acts. The common criminal purpose was not to kill all non-Serb men; from the evidence adduced and accepted, it is clear that killings frequently occurred in the effort to rid the Prijedor region of the non-Serb population. That the Appellant had been aware of the killings accompanying the commission of inhumane acts against the non-Serb population is beyond doubt. That is the context in which the attack on Jaskici and his participation therein, as found by the Trial Chamber as well as the Appeals Chamber above, should be seen. That nobody was killed in the attack on Sivci on the same day does not represent a change of the common criminal purpose." Tadic Appeals Judgment, at para. 232 (internal citations omitted).
218. Tadic Appeals Judgment, at para. 233.
219. Tadic Appeals Judgment, at para. 233.
220. Brdjanin & Talic Decision, at para. 27. In Prosecutor v. Krnojelac, Trial Chamber Decision on Form of Second Amended Indictment (May 11, 2000) (hereinafter "Krnojelac Decision"), the Trial Chamber clarified that the third category is only applicable in cases where "[the Prosecution] is unable to establish beyond reasonable doubt that the accused was the person who personally committed the offence charged. Krnojelac Decision, at para. 11.
221. Brdjanin & Talic Decision, at para. 39 (emphasis in original). See also, Prosecutor v. Krnojelac, IT-97-25-T, Trial Chamber II Judgment (Mar. 15, 2002) (hereinafter "Krnojelac Trial Judgment"), at para. 16, where that Trial Chamber held that with regards to the accused right to fair notice of the charges against him, the accused must be informed in the indictment of: " (a) the nature or purpose of the joint criminal enterprise (or its "essence", as the accused here has suggested), (b) the time at which or the period over which the enterprise is said to have existed, (c) the identity of those engaged in the enterprise - so far as their identity is known, but at least by reference to their category as a group, and (d) the nature of the participation by the accused in that enterprise. Where any of these matters is to be established by inference, the prosecution must identify in the indictment the facts and circumstances from which the inference is sought to be drawn.
222. Krnojelac Decision, at para. 16. In Krnojelac, the Trial Chamber held that the indictment provided insufficient notice to the accused because it failed to provide the identification of those engaged in the "joint criminal enterprise" with the accused with a sufficient amount of specificity.
223. Krnojelac Decision, at pars. 17-8. This error by the Prosecution, and its continued inability to identify others involved in the "joint criminal enterprise", however, was held insufficient to dismiss the case against the Krnojelac.
224. Krnojelac Decision, at para. 24.
225. Cf., Prosecutor v. Krstic, IT-98-33-T (Trial Chamber Judgment, Aug. 2, 2001) (hereinafter "Krstic Judgment"), where "joint criminal enterprise", as a form of responsibility, was not even pleaded in the indictment, but was nevertheless considered by the Trial Chamber because this form of responsibility was discussed, among other things, in the Prosecutor's Pre-Trial Brief.
226. Krstic Judgment, at para. 480.
227. Brdjanin & Talic Decision, at para. 41. In a footnote, however, the Trial Chamber noted that the burden carried by the prosecution in relation to the accused's state of mind is higher in a case where the crime charged falls within the object of the enterprise than it is for a case based solely upon aiding and abetting. Thus, "[i]n a case based solely upon aiding and abetting, the prosecution must establish that the accused knew that the perpetrator had the state of mind required for the crime committed, but it need not establish that he also shared that state of mind - as it must in a case based upon a joint criminal enterprise."
228. Brdjanin & Talic Decision, at fn. 108 citing to Prosecutor v Furundzija, IT-95-17/1-T, Judgment, 10 Dec. 1998, at para. 245 ("[...] it is not necessary for the accomplice to share the mens rea of the perpetrator") (emphasis in original).
229. Brdjanin & Talic Decision, at para. 43. The Trial Chamber noted that: "There must be a common object, or a common purpose, to carry out a particular crime (the criminal object of the enterprise), and - if a further crime is committed which went beyond that criminal object of the enterprise, but which is nevertheless a natural and foreseeable consequence of executing that criminal object or enterprise - each participant in that enterprise will be responsible if he was aware that such a further crime was a possible consequence in the execution of that enterprise, and that, with that awareness, he participated in that enterprise. Unless the criminal object of that enterprise is identified, it is not possible to determine whether the further crime charged was a natural and foreseeable consequence of executing that criminal object. That criminal object is not identified by asserting (and then only by implication in the indictment) merely that there was "no lawful purpose".
230. Brdjanin & Talic Decision, at para. 43.
231. Brdjanin & Talic Decision, at para. 44 (emphasis in original). This issue was also further discussed in the Appeals Chamber Judgment in Prosecutor v. Furundzija, Appeals Chamber Judgment (July 21, 2000) (hereinafter "Furundzija Appeals Judgment"), where the Appeals Chamber held that "where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable." Furundzija Appeals Judgment, at para. 120-21. On
232. Brdjanin & Talic Decision, at para. 45. With respect to this issue, The Trial Chamber noted that: "If, in the course of an armed conflict and a widespread or systematic attack directed against a civilian population, the commander of a small group of soldiers directs those soldiers to collect all the inhabitants of a particular ethnicity within a particular town and to remove them forcibly out of the region, he becomes a participant in an enterprise to commit deportation and forcible transfer (as crimes against humanity), and there could be little doubt, having regard to previous episodes of ethnic cleansing in the former Yugoslavia, that, for example, murder (as another crime against humanity) and wanton destruction of the town (as a violation of the laws and customs of war) were natural and foreseeable consequences of the execution of that enterprise. There would be no difficulty in determining what crimes fell within the agreed criminal object of the enterprise and whether any further crimes charged were natural and foreseeable consequences in the execution of that enterprise. It is only when the prosecution seeks to include within that joint criminal enterprise persons as remote from the commission of the crimes charged as are the two accused in the present case that a difficulty arises in identifying the agreed criminal object of that enterprise. That difficulty is of the prosecution's own making, as it is a difficulty necessarily arising out of the case it seeks to make. That very difficulty may, of course, indicate that a case based upon a joint criminal enterprise is inappropriate in the circumstances of the present prosecution. That is a matter which will have to be determined at the trial. But the prosecution cannot avoid its difficulty simply by seeking to avoid pleading properly the joint criminal enterprise upon which it relies. It is sufficient at this stage for the Trial Chamber to say merely that, if the prosecution does plead that all of the crimes charged went beyond the object of the joint criminal enterprise, it must identify in the indictment the agreed criminal object of the enterprise upon which it relies. An order will be made accordingly."
233. Brdjanin & Talic Decision, at para. 45 (emphasis in original).
234. Prosecutor v. Krnojelac, IT-97-25-T, Trial Chamber II Judgment (Mar. 15, 2002) (hereinafter "Krnojelac Trial Judgment"), at para. 131.
235. Krnojelac Appeals Judgment, at para. 138.
236. Krnojelac Trial Judgment, at para. 74. The significance of the distinction, according to the Trial Chamber, "appears to be derived from the civil law, where a person who merely aids and abets the principal offender is subject to a lower maximum sentence."
237. Krnojelac Trial Judgment, at para. 75.
238. Krnojelac Trial Judgment, at para. 75. With respect to punishment, the Trial Chamber held that there are "circumstances in which a participant in a joint criminal enterprise will deserve greater punishment than the principal offender deserves."
239. Krnojelac Trial Judgment, at para. 77. The participant who plans a mass destruction of life, and who orders others to carry out that plan, could well receive a greater sentence than the many functionaries who between them carry out the actual killing.
240. Krnojelac Trial Judgment, at para. 73. See also, Yugoslav Tribunal Judicial Supplement, No. 45 (available at http://www.un.org/icty/publications-e/ index.htm).
241. Krnojelac Trial Judgment, at para. 87.
242. Krnojelac Trial Judgment, at pars. 88-90.
243. Prosecutor v. Krnojelac, IT-97-25-A, Judgment of the Appeals Chamber (September 17, 2003) (hereinafter "Krnojelac Appeals Judgment").
244. Prosecutor v. Milutinovic et al., IT-99-37-AR72, Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction - Joint Criminal Enterprise (hereinafter "Ojdanic Decision"), 21 May 2003, para. 20. The differences between individual responsibility that arises a participant in a "joint criminal enterprise" and as an "aider and abettor" was also addressed by the Appeals Chamber in Prosecutor v. Vasiljevic, Appeals Chamber Judgment, IT-98-32-A (February 25, 2004) (hereinafter "Vasiljevic Appeals Judgment"). In that Judgment the Appeals Chamber noted that in a "joint criminal enterprise", the participants are considered co-perpetrators. The Appeals Chamber also noted, however, that there can also be participants in a joint criminal enterprise by "aiding and abetting." This participation "is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime."
245. Vasiljevic Appeals Judgment, at para. 102. The Appeals Chamber also noted that when a crime is committed by several co-perpetrators, the aider and abettor is "always an accessory to these co-perpetrators, although the co-perpetrators may not always know of the aider and abettor's contribution. "
246. Vasiljevic Appeals Judgment, at para. 102. The Appeals Chamber then noted the differences in the actus reus and mens rea of the two forms of liability: " (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of he crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose."
247. Vasiljevic Appeals, Judgment, at para. 102
248. Yugoslav Tribunal Judicial Supplement, No. 45 (available at http://www.un.org/icty/publications-e/index.htm). The Prosecution argued that such an approach could render the notion of joint criminal enterprise redundant in the context of State criminality.
249. Krnojelac Appeals Judgment, at para. 84.
250. See Yugoslav Tribunal Judicial Supplement, No. 45 (available at http://www.un.org/icty/publications-e/index.htm).
251. Krnojelac Appeals Judgment, at para. 89. The Appeals Chamber stated that the Trial Chamber had only followed the approach taken by the Prosecution, which had pleaded the common purpose theory (basic form of joint criminal enterprise) in the indictment. It held that the Trial Chamber had been justified in seeking out the intent of the crime's principal perpetrators.
252. Krnojelac Appeals Judgment, at para. 97.
253. Krnojelac Appeals Judgment, at para. 113.
254. Krnojelac Appeals Judgment, at para. 116.
255. Prosecutor v. Milutinovic et al., IT-99-37-AR72, Appeals Chamber Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (May 21, 2003) (hereinafter "Ojdanic Decision").
256. Decision on Dragoljub Ojdanic's Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise ("Impugned Decision"). Ojdanic was charged with deportation, other inhumane acts, persecution and murder, pursuant to both articles 7(3) and 7(1) of the Yugoslav Tribunal Statute. The indictment alleged that his responsibility pursuant to article 7(1) arises form his role in a joint criminal enterprise to commit these crimes. On November 29, 2002, Ojdanic filed a Preliminary Motion before the Trial Chamber to dismiss the indictment for lack of jurisdiction in relation to charges based on his liability as a participant in a joint criminal enterprise.
257. Impugned Decision, at pp. 6-7.
258. Ojdanic Decision, at para. 9-11. The Appeals Chamber noted that "in order to come 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". Ojdanic Decision, at para. 21 (emphasis in original).
259. Ojdanic Decision, at para. 18.
260. Ojdanic Decision, at para. 18.
261. See Yugoslav Tribunal Judicial Supplement No. 41 (available at http://www.un.org/icty/publications-e/index.htm).
262. Ojdanic Decision, at para. 20.
263. Ojdanic Decision, at para. 20-1.
264. Ojdanic Decision, at para. 23. The Appeals Chamber cited to XV Law Report of Trials of War Criminals in which the United Nations War Crimes Commission stated that "the difference between a charge of conspiracy and one of acting in pursuance of a common design is that the first would claim that an agreement to commit offences had been made while the second would allege not only the making of an agreement but the performance of acts pursuant to it" (paras. 97-98).
265. Ojdanic Decision, at para. 23.
266. Ojdanic Decision, at para. 25.
267. Ojdanic Decision, at para. 25.
268. Ojdanic Decision, at para. 26.
269. Ojdanic Decision, at para. 29.
270. Ojdanic Decision, at para. 29. With respect to the meaning and scope of "joint criminal enterprise" liability charged against Ojdanic, the Appeals Chamber held that "joint criminal enterprise" is to be regarded "not as a form of accomplice liability, but as a form of 'commission' and that liability stems not, as claimed by the Defense, from mere membership of an organization, but from participating in the commission of the crime as part of a criminal enterprise."
271. Ojdanic Decision, at para. 31. The Appeals Chamber held that the description of the accused's actions in the indictment "falls squarely within the definition" of "joint criminal enterprise" given by the Appeals Chamber in Tadic and that the Prosecution "may not be said to have gone beyond the realm of the Tadic decision...."
272. Ojdanic Decision, at para. 33.
273. Ojdanic Decision, at para. 34.
274. Ojdanic Decision, at para. 38.
275. Ojdanic Decision, at para. 38, citing to three decisions of the European Court of Human Rights.
276. Ojdanic Decision, at para. 40, citing to Article 26 of the SFRJ Criminal Code. Article 26, which is entitled "Criminal responsibility and punishability [sic] of the organizers of criminal associations" provides: "Anybody creating or making use of an organization, gang, cabal, group or any other association for the purpose of committing criminal acts is criminally responsible for all criminal acts resulting from the criminal design of these associations and shall be punished as if he himself has committed them, irrespective of whether and in what manner he himself directly participated in the commission of any of those acts."
277. SFRJ Criminal Code, Art. 26 available at http://pbosnia.kentlaw.edu/ resources/legal/bosnia/criminalcode-fry.htmhap-16 (last visited October 30, 2005). It is interesting to note that, although the Decision cites to Article 26 of the SFRJ Criminal Code, a provision contained in the Chapter 2 of the Code dealing with Criminal Conduct and Criminal Liability, the Decision fails to cite to Article 145 of the SFRJ Criminal Code which is found in Chapter 16 of the Code and deals more specifically with "Criminal Acts Against Humanity and International Law." Article 145, which appears to be much more related to the prosecution of international crimes provides: " (1) Whoever organizes a group for the purpose of committing criminal acts referred to in articles 141 to 144 of this law, shall be punished by imprisonment for not less than five years. (2) Whoever becomes a member of a group referred to in paragraph 1 of this article, shall be punished by imprisonment for not less than one year. (3) A member of a group referred to in paragraph 1 of this article who exposes the group before he has committed a criminal act in its ranks or on its account, shall be punished by imprisonment for a term not exceeding three years, but the court may also refrain from imposing a punishment on him. (4) Whoever calls on or instigates the commission of criminal acts referred to in articles 141 to 144 of this law, shall be punished by imprisonment for a term exceeding one year but not exceeding 10 years."
278. SFRJ Criminal Code, Art. 145. The crimes listed in articles 141 to 144 include genocide, war crimes against civilian population, war crimes against wounded and sick, and war crimes against prisoners of war. In addition, the Decision itself concedes that domestic law may not provide sufficient notice of the fact that an act may be considered criminal under international law.
279. Ojdanic Decision, at para. 41. In a footnote, the Appeals Chamber also dismissed the Defense arguments based on Articles 253 (Conspiracy for the purpose of the commission of a criminal act defined in the federal law), as being "irrelevant" insofar as they related, not to a form of joint criminal enterprise, but to a form of "conspiracy", which is a different form of liability.
280. Ojdanic Decision, at fn. 98. Similarly "irrelevant" were considered Defense arguments pursuant to Article 254 of the SFRJ Criminal code, which incidentally is entitled "Joining for the purpose of the commission of criminal acts defined in the federal law".
281. Ojdanic Decision, at para. 43.
282. Ojdanic Decision, at para. 44.
283. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 1
284. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 5.
285. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 7.
286. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 7.
287. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 10.
288. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 11.
289. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 15.
290. Ojdanic Decision, Sep. Opinion Judge Shahabuddeen, at para. 24.
291. Ojdanic Decision, Sep. Opinion Hunt, at para. 15
292. Ojdanic Decision, Sep. Opinion Hunt, at para. 15.
293. Ojdanic Decision, Sep. Opinion Hunt, at para. 17.
294. Ojdanic Decision, Sep. Opinion Hunt, at para. 18.
295. citing and referring to Bassiouni, Crimes Against Humanity, supra note 1, at p. 356.
296. Ojdanic Decision, Sep. Opinion Hunt, at para. 18.
297. Ojdanic Decision, Sep. Opinion Hunt, at para. 21.
298. Ojdanic Decision, Sep. Opinion Hunt, at para. 23.
299. Ojdanic Decision, Sep. Opinion Hunt, at para. 23.
300. Ojdanic Decision, Sep. Opinion Hunt, at para. 27.
301. Ojdanic Decision, Sep. Opinion Hunt, at para. 29.
302. Ojdanic Decision, Sep. Opinion Hunt, at para. 29.
303. Ojdanic Decision, Sep. Opinion Hunt, at para. 29.
304. Ojdanic Decision, Sep. Opinion Hunt, at para. 30.
305. Ojdanic Decision, Sep. Opinion Hunt, at para. 30. Judge Hunt also agreed with the Defense argument that neither of the subsequent decision of the Appeals Chamber in Furundjija or Delacic "provide any assistance or binding propositions of law beyond what was state in the Tadic" judgment.
306. Ojdanic Decision, Sep. Opinion Hunt, at para. 32.
307. Ojdanic Decision, Sep. Opinion Hunt, at para. 36-43.
308. Allison Danner and Jenny Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 California Law Review 75(2005) (hereinafter "Danner & Martinez, Guilty Associations"), at 107 (noting that of the forty two indictments filed between June 25, 2002 (the first indictment to rely on "joint criminal enterprise") and January 2004, 27 (or 64%) relied explicitly on "joint criminal enterprise").
309. Tadic Appeals Chamber Judgment, at para. 220
310. See Tadic Appeals Judgment, at pars. 196-201.
311. Bassiouni, Crimes Against Humanity, supra note 1, at 289.
312. See Bassiouni, Crimes Against Humanity, supra note 1, at 386-87.
313. See also, August von Knieriem, The Nuremburg Trials 195-230(1959).
314. See Tadic Appeals Judgment, at para. 202.
315. Ojdanic Decision, Sep. Opinion Hunt, at para. 30.
316. See Tadic Appeals Judgment, at pars. 214-18.
317. Danner & Martinez, Guilty Associations, supra note 239, at 110.
318. Tadic Appeals Judgment, at para. 225.
319. See Tadic Appeals Judgment, at para. 224.
320. See Bassiouni, Crimes Against Humanity, supra note 1, at 382.
321. See also, Danner & Martinez, Guilty Associations, supra note 239, at 114-20.
322. See La Fave, Criminal Law supra note 60, at 621.
323. See Tadic Appeals Judgment, at para. 227.
324. See La Fave, Criminal Law supra note 60, at 622
325. citing to Iannelli v. U. S., 420 U. S. 770
326. 95 S. Ct. 1284(1975).
327. See also, Interstate Circuit v. U. S. 306 U. S. 208(1939) (permitting reliance on inferences drawn from the course of conduct of the alleged conspirators" as proof of the agreement).
328. See Tadic Appeals Judgment, at para. 227.
329. Tadic Appeals Judgment, at para. 229 (emphasis added). The court goes on to add that ":indeed the principal may not even know about the accomplices' contribution. "
330. See La Fave, Criminal Law supra note 60, at 623
331. citing to Blumenthal v. U. S. 322 U. S. 539(1947) and other related cases.
332. See La Fave, Criminal Law supra note 60, at 623, notes 17-8.
333. See Tadic Appeals Judgment, at para. 227.
334. See La Fave, Criminal Law supra note 60, at 626.
335. citing to State v. Sullivan, 68 Ariz. 81(1948)
336. Williams v. State, 16 Okla. Crim. 217(1919).
337. La Fave, Criminal Law supra note 60, at 627 (and cases cited therein).
338. See Tadic Appeals Judgment, at para. 228.
339. This can certainly be argued in light of the Appeals Chamber judgment in Tadic which based the accused responsibility at least in part on his awareness of the killings accompanying the commission of inhumane acts...." See Tadic Appeals Judgment, at para. 232.
340. See La Fave, Criminal Law supra note 60, at 630-31.
341. See La Fave, Criminal Law supra note 60, at 687.
342. See Ojdanic Decision, at para. 43-4.
343. Particularly because of the language in Ojdanic which holds "joint criminal enterprise" to be not a form of accomplice liability, but rather a "form of commission" with the liability stemming from "participating in the commission of the crime as part of a criminal enterprise." See Ojdanic Decision, at para. 31.
344. See La Fave, Criminal Law supra note 60, at 651.
345. See Bassiouni, Introduction, supra note 10, at 178-226.
346. (noting that, prior to the Nuremberg Tribunal and Tokyo Tribunal, questions of legality arose only once in the history of the PCIJ in the case Advisory Opinion on the Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City 3 P. C. I. J. Series A/B No. 65, at 514 (Dec. 4, 1935).
347. See Bassiouni, Introduction, supra note 10, at 204-12.
348. Universal Declaration of Human Rights, G. A. res. 217A (III), U. N. Doc A/810 at 71(1948), at art. II, para. 2.
349. International Covenant on Civil and Political Rights, G. A. res. 2200A (XXI)
350. 21 UN. GAOR Supp. (No. 16) at 52
351. UN. Doc. A/6316(1966)
352. 999 U. N. T. S. 171, entered into force Mar. 23, 1976, at art. 15.
353. African Charter on Human Rights and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5
354. 21 I. L. M. 58(1982), entered into force Oct. 21, 1986, at art. 7.
355. American Convention on Human Rights, O. A. S. Treaty Series No. 36, 1144 U. N. T. S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser. L. V/II.82 doc.6 rev. 1 at 25(1992). at art. 9 (containing the prohibition against ex post facto laws.
356. See Report of Secretary General, supra note 77, at 34.
357. See Rome Statute, supra note 8, at arts. 22-4, 11.
358. See Bassiouni, Introduction, supra note 10, at 213.
359. See Danner & Martinez, Guilty Associations, supra note 239, at 104.
360. Bassiouni, Introduction, supra note 10, at Ch. 3. Besides the International Convention for the Suppression of Terrorist Bombing (Art. II (3) (c)), and the aforementioned Rome Statute Article 25, no other international convention contains a reference to "common purpose".
361. See Report of Secretary General, supra note 77 (emphasis added).
362. The CIA World Factbook (December 2003), and as complied by nationmaster.com (available at http://www.nationmaster.com/graph-T/gov-leg-sys) lists 250 states and territories. Of these 250 states and territories, there are 192 independent states. Only 44 of these states that follow the common law concept similar to "joint criminal enterprise" on their books, either as a specific offense or a form of responsibility.
363. In the U. S. for example, "continuing criminal enterprise" is defined as a specific crime in 21 U. S. C. 848 ("Continuing Criminal Enterprise").
364. Ojdanic Decision, Sep. Opinion Hunt, at para. 30.
365. The articulation of "joint criminal enterprise" principles in the Yugoslav Tribunal judgments was considered by the members of the International Commission of Inquiry on Darfur, which included a reference to this form of liability in its report to the UN Secretary General on January 25, 2005. See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, available at http://www.ohchr.org/english/ darfur.htm (last visited October 20, 2005).
366. Danner & Martinez, Guilty Associations, supra note 239, at 132.