"Just convict everyone!" - Joint perpetration: From Tadić to Stakić and back again

International Criminal Law Review

Volumn 6, Issue 2, 2006, Pages 293-302

  Badar, Mohamed Elewa ^a,b  

^a MINISTRY OF JUSTICE   (Egypt)

^b Public Prosecution Office   (Egypt)

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EID: 78650523302     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181206778050679     Document Type: Article

References (45)

1. Stakić Appeals Judgment, Disposition.
2. Stakić Appeals Judgment, Disposition.
3. Stakić Appeals Judgment, Disposition.
4. Stakić Trial Judgment, para. 441 (footnotes omitted). Unfortunately, the Stakić Trial Judgment did not make any effort to determine whether or not this concept, Mittäterschaft ("co- perpetratorship"), as it stands in German criminal law, may have reflected customary international law at the time the crimes at issue were committed. In footnote 949 of the Judgment, the Stakić Trial Chamber made references to two eminent common law scholars, but that was not sufficient to prove that this German concept may reflect customary international law.
5. Stakić Appeals Judgment, para. 59.
6. For a systematic analysis on the law of 'joint criminal enterprise' in the jurisprudence of the ICTY, see Verena Haan, 'The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia', 5 International Criminal Law Review (2005) 167-201.
7. Prosecutor v Blagoje Simićet al, Case No. IT-95-9-T, Trial Judgment, 17 October 2003 (Simić Trial Chamber), Separate and Partly Opinion of Judge Per-Johan Lindholm, paras. 2-5.
8. Prosecutor v Blagoje Simić et al., Case No. IT-95-9-T, Trial Judgment, 17 October 2003 (Simić Trial Judgment) Separate and Partly Opinion of Judge Per-Johan Lindholm, paras. 2-5.
9. In Krnojelać, the Trial Chamber declined to apply the second category of 'joint criminal enterprise' because in their view it did not comply with the principle of individual criminal responsibility, Prosecutor v. Milorad Krnojelać, Case No. IT-97-25-T, Trial Judgment, 15 March 2002, (Krnojelać Trial Judgment) para. 78.
10. See the Prosecution Fourth Amended Indictment (Case No. IT-97-24-PT) para. 26: "Milomir STAKIĆ participated in the joint criminal enterprise, in his roles as set out... above. The purpose of the joint criminal enterprise was the permanent forcible removal of Bosnian Croat inhabitants from the territory of the planned Serbian state, including a campaign of persecutions through the commission of the crimes alleged in Counts 1 to 8 of the Indictment.
11. Prosecution Final Trial Brief, para. 82
12. cited in Stakić Appeals Judgment, para. 58, fn. 138.
13. Stakić Trial Judgment, para. 438. Article 7(1) of the ICTY Statute provides: "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"
14. Stakić Trial Judgment, para. 438.
15. In Simić, Judge Per-Johan Lindholm upholds the same opinion, Simić Trial Judgment, Separate and Partly Opinion of Judge Per-Johan Lindholm, supra note 13, para. 2.
16. Stakić Trial Judgment, para. 439.
17. Stakić Trial Judgment, para. 440.
18. Stakić Trial Judgment, para. 440
19. quoting Claus Roxin, (Täterschaft und Tatherrschaft "Perpetration and Control Over the Act" (Berlin, New York, 1994) 278.
20. Stakić Trial Judgment, para. 440 (footnotes omitted).
21. Stakić Trial Judgment, paras. 495-497.
22. Stakić Trial Judgment, para. 498.
23. Albin Eser, 'Individual Criminal Responsibility', in Antonio Cassese et al., (eds), I The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 767-822, at 790.
24. Stakić Appeals Judgment, para. 62 (footnotes omitted).
25. Stakić Appeals Judgment, para. 62.
26. Stakić Appeals Judgment, para. 63.
27. Stakić Appeals Judgment, para. 66. In paragraph 26 of the Indictment, the Prosecution alleged that the purpose of the joint criminal enterprise was a campaign of persecutions that encompassed the crimes alleged in counts 1 through 8 of the Indictment. The Appeals Chamber found that, in this paragapgh, the Prosecution was plainly alleging a basic joint criminal eneterprise - the crimes alleged were within the common purpose. In paragraphs 28 and 29 of the Indictment, however, the Prosecution set out an alternative theory: Para. 28: "Aternatively, the accused is individually responsible for the crimes enumerated in Counts 1 to 8 on the basis that these crimes were natural and foreseeable consequences of the execution of the common purpose of the joint criminal enterprise and Milomir STAKIC was aware that these crimes were the possible consequence of the execution of the joint criminal enterprise." Para. 29: "Despite his awareness of the possible consequences, Milomir STAKIC knowingly and wilfully participated in the joint criminal eneterprise. On this basis, he bears individual criminal responsibility for these crimes under Article 7(1) in addition to his responsibility under the same article having planned, instigated, ordered or otherwise aided and abetted in the planing, preparaition, or execution of these crimes." (emphasis in original).
28. Stakić Appeals Judgment, para. 75 (emphasis are in original).
29. According to the Tadić Appeal Chamber, the basic category of joint criminal enterprise requires proof that the accused shared the intent specifically necessary for the concrete offence and voluntarily participated in that enterprise, see Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeals Judgment, 15 July 1999
30. (Tadić Appeals Judgment) paras. 190-206.
31. Stakić Appeals Judgment, para. 80.
32. Stakić Trial Judgment, para. 498
33. quoted by Stakić Appeals Judgment, para. 82.
34. Stakić Appeals Judgment, para. 85.
35. Stakić Appeals Judgment, para. 87 (capital letters are in original).
36. While examining the modes of participation pursuant to Articles 7(1) and 7(3) of the ICTY Statute and particularly the three categories of joint criminal enterprise under which Stakić was charged the Trial Chamber noted with special reference to the mens rea of joint criminal enterprise that "Article 7(1) lists modes of liability only. These can not change or replace elements of crimes defined in the Statute. In particular, the mens rea elements required for an offence listed in the Statute cannot be altered." Stakić Trial Judgment, para. 437.
37. Stakić Appeals Judgment, para. 98.
38. See Tadić Appeals Judgment, para. 229.
39. For a critical views with regard to the applicability of the third category of 'joint criminal enterprise' see Marco Sassòli and Laura M. Olson, 'The judgment of the ICTY Appeals Chambr on the merits in the Tadic case', International Review of the Red Cross No. 839(2000) 739-769.
40. Stakić Appeals Judgment, para. 98.
41. See Mohamed Elewa Badar, 'Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia', 6/3 International Criminal Law Review (2006) (forthcoming).
42. Stakić Trial Judgment, para. 530.
43. See also Prosecutor v. Radoslav Bardanin, Decision on Motion for Acquittal Pursuant to Rule 98 bis, Case No. IT-99-36-T, Trial Chamber Decision, 28 November 2003, para. 57 ("This specific intent [of genocide] cannot be reconciled with the mens rea for a conviction pursuant to the third category of JCE. The latter consists of the accused's awareness of the risk that genocide would be committed by other members of the JCE.
44. This is a different mens rea and falls short of the threshold needed to satisfy the specific intent required for a conviction for genocide under Article 4(3) (a).") Most notably, this finding by the Trial Chamber was overturned by the Appeals Chamber in Prosecutor v. Radoslav Bardanin, Decision on Interlocutory Appeal, Case No. IT-99-36-A, Appeals Chamber Decision, 19 March 2004.
45. The term "just convict everyone" was used by Professor William Schabas as an alternative to the third category of JCE during a lecture at the 5th Annual 'International Criminal Court-Summer Course', Galway, 2005.