The development of the concept of joint criminal enterprise at the International Criminal Tribunal for the Former Yugoslavia

International Criminal Law Review

Volumn 5, Issue 2, 2005, Pages 167-201

  Haan, Verena ^a  

^a NONE

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EID: 79251517986     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/1571812054127817     Document Type: Article

References (146)

1. ICTY-Appeals Chamber, Prosecutor v. Dusko Tadic a/k/a Dule, Judgment (Case No. IT-94-12-A), 15.7. 1999 (in the following: Tadic Appeal Judgment), para. 185-236. It should be mentioned that earlier Trial decisions already used terms such as "common purpose" or "joint enterprise".
2. See for example: ICTY-Trial Chamber II, Prosecutor v. Dusko Tadic a/k/a Dule, Opinion an Judgment, IT-94-12-T, 7.5. 1997. But the Tadic Appeal Judgment is the first to undertake a thorough and systematic interpretation of this notion. Thus, in the following case law of the ICTY and in the legal literature, the Tadic Judgment is considered the main reference point.
3. These decisions are: Tadic Appeal Judgment, supra fn. 2;
4. Prosecutor vs. Kvocka et al., IT-98-30/1-T, Judgment, 2.11. 2001 (Kvocka Trial Judgment);
5. Prosecutor vs. Krnojelac, IT-97-25-T, Judgment, 15.03. 2002 (Krnojelac Trial Judgment);
6. Prosecutor vs. Krnojelac, IT-97-25-A, Appeals Judgement, 17.09.03 (Krnojelac Appeal Judgment);
7. Prosecutor vs. Vasiljevic, IT-98-32-T, Judgment, 29.11. 2002 (Vasiljevic Trial Judgment);
8. Prosecutor vs. Vasiljevic, IT-98-32-A, Appeal Judgment, 25.02. 2004 (Vasiljevic Appeal Judgment);
9. Prosecutor vs. Krstic, IT-98-33-T, Judgment, 02.08. 2001 (Krstic Trial Judgment);
10. Prosecutor vs. Krstic, IT-98-33-A, Appeal Judgment, 19.04.04 (Krstic Appeal Judgment);
11. Prosecutor vs. Milomir Stakic, IT-97-24-T, Judgment, 31.07. 2003 (Stakic Trial Judgment);
12. Prosecutor vs. Simic et al., IT-95-9-T, Judgment, 17.10. 2003 (Simic Trial Judgment);
13. Appeal Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction - Joint Criminal Enterprise, 21 May 2003 (Ojdanic Appeal Decision);
14. Prosecutor vs. Radoslav Brdjanin, decision on motion for acquittal pursuant to rule 98 bis, IT-99-36-T, 28. November 2003 (Brdjanin Rule 98 Trial Decision);
15. Prosecutor v. Radoslav Brdjanin, decision on interlocutory appeal, IT-99-36-A, 19.03. 2004; (Brdjanin Rule 98 Appeals Decision);
16. Prosecutor v. Slobodan Milosevic's decision on motion for judgment of acquittal, IT-99-36-A, 19.03. 2004; IT-02-54-T, 16.06.2004 (Milosevic, Rule 98, Trial Decision);
17. Prosecutor v. Milan Babic, Sentencing Judgment, 29 June 2004, Case No. IT-03-72-S, (Babic, Sentencing Judgment).
18. This is due to the fact that the Prosecution chooses the concept of JCE as basis for its accusation in evermore trials, pleading that the accused should be held responsible for all indicted crimes as participant in one or several joint criminal enterprises. See only Prosecutor v. Dusko Tadic a/k/a Dule, Judgment, No. IT-94-12-A, Cross Appellants's Brief para. 3.19.
19. Tadic Appeal Judgment, para. 227, 228. (emphasis added)
20. For example Kvocka Trial Judgment, para. 263, 264.
21. See the summary in Prosecutor v. Radoslav Brdjanin, Momir Talic, IT-99-36-PT, Decision on form of further amended indictment and prosecution application to amend, 26.06. 2001, para. 24 (Talic Decision).
22. Babic Sentencing Judgment, para. 4, 6, 7.
23. Tadic Appeal Judgment, para. 227.
24. See for example Simic Trial Judgment, para. 155;
25. Vasiljevic Appeal Judgment, para. 97-99
26. Brdjanin Rule 98bis Decision, note 66;
27. Stakic Trial Judgment, para. 426.
28. Tadic Trial Judgment, para. 373.
29. Tadic Appeal Judgment, para. 232ff.
30. Kvocka Trial Judgment, para. 329ff.;
31. Krnojelac Appeal Judgment, para. 97, 113.
32. Stakic as well as Simic were the highest ranking civilian official in their municipality, Stakic being the mayor of the Region of Prijedor, Simic being the chief of the crisis Staff in the region of Bosanski Samac. Both have been convicted for having participated, along with other high rank politicians and military persons, in the setting up and organisations of persecution campaigns in municipalities of Bosnia Herzegovina in the role of regional leaders. Stakic Trial Judgment, para. 442, 590;
33. Simic Trial Judgment, para. 1078.
34. Brdjanin Rule 98bis, Trial Decision, para. 23ff.
35. Brdjanin Rule 98bis, Appeals Decision para. 1ff.;
36. Milosevic Rule 98bis, Trial Decision, para. 288ff.
37. Krnojelac Trial Judgment, para. 343, 525
38. Stakic Trial Judgment, para. 201.
39. See for example Krnojelac Trial Judgment, para. 412;
40. Krstic Trial Judgment, para. 153ff., 434ff.
41. In at least three cases the Trial Chamber and Appeals Chamber took opposing views with regard to the state of mind of the accused person. In Vasiljevic, the Trial Chamber convicted the accused for participating in the killing of seven men, but the Appeals Chamber reversed the judgement to aiding and abetting the killing, finding that he had lacked the intent to kill. Vasiljevic Appeals Chamber Judgment para. 133ff; 147. The accused Krnojelac, on the other hand, having been convicted on Trial level as aiding and abetting persecution, was convicted on the base of JCE for the commission of persecution on Appeals level. Krnojelac Appeals Judgment, para. 111, 112. In Krstic, finally, The Trial Chamber and Appeals Chambered differed in their view regarding the genocidal intent of General Krstic.
42. While the Trial Judgment found Krstic guilty to have participated in the massacre in Srebrenica with genocidal intent, the Appeals Chamber reversed the Trial Judgment and convicted Kristic "only" as aider and abetter to genocide Krstic Appeals Judgment, para. 39ff; 135ff.
43. Brdjanin Rule 89 Trial Decision para. 17.
44. Krnojelac Trial Judgment, para. 78.
45. Stakic Trial Judgment, para. 433.
46. Simic Trial Judgment, Separate and partly dissenting opinion of Judge Per-Johan Lindholm, para. 2-5.
47. Tadic Appeal Judgment, para. 185ff.
48. Ojdanic Appeal Decision, para. 9ff.
49. Ojdanic Appeal Decision, para. 18: "The Statute of the International Tribunal sets the framework within which the Tribunal may exercise its jurisdiction. A crime or a form of liability which is not provided for in the Statute could not form the basis of a conviction before this Tribunal. The reference to that crime or to that form of liability does not need, however, 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, unlike for instance the Rome Statute of the International Criminal Court, a meticulously detailed code providing explicitly 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."
50. Tadic Appeal Judgment, para. 188-190
51. citing Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808(1993), U. N. Doc. S/25704, 3 May 1993 ("Report of the Secretary-General"), para. 54.
52. Kvocka Trial Judgment para. 276ff. The Chambers cited among others the following cases: The United States of America v. Otto Ohlendorf et al. (Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10); Trial of Otto Sandrock et al. British Military Court for the Trial of War Criminals, Almelo, Holland, November, 1945, UNWCC I, S. 35), Hoelzer et al. Canadian Military Court, Aurich, Germany Record of Proceedings 25 March-6 April 1946, Vol. I); den Britisch Military Court, Essen June 11-26 1946, UNWXX vol. XI, p. 68; den Trial of Gustav Alfred Jepsen and others, Proceedings of a War Crimes Trial held at Luneberg, Germany, (12-23 August 1946) pp. 341, 347ff.) Trial of Feuerstein et al. Proceedings of a War Crimes Trial held at Hamburg, Germany (4.24 August 1948) judgment of 24 August 1948; Trial of Max Ernst Friedrich Gustav Wielen et al. Proceedings of the Military Court at Hamburg (1-3 July 1947).
53. Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen, vol. I, pp. 53-56;
54. 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;
55. Annalberti et al., 18 June 1949, in Giustizia penale 1949, Part II, col. 732, no. 440;
56. Tadic Appeals Judgment para. 221: "Pursuant to Article 2(3) (c) of the Convention, offences envisaged in the Convention may be committed by any person who: in any other way [other than participating as an accomplice, or organising or directing others to commit an offence] contributes to the commission of one or more offences as set forth in paragraphs 1 or 2 of the present article by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned."
57. Ojdanic Appeal Decision, para. 40ff.
58. Tadic Appeal Judgment, para. 196.
59. Stakic Trial Judgment, para. 435.
60. Tadic Appeal Judgment, para. 196, 227.
61. Krstic Trial Judgement, para. 611
62. Vasiljevic Appeal Judgment, para. 100.
63. Simic Trial Judgment, para. 897.
64. One exception is the Vasiljevic Trial Judgment, para. 188: "The Prosecution alleges that the Accused incurred individual criminal responsibility for the murder and mistreatment of the Muslim civilians locked in the house as a participant in a joint criminal enterprise to kill or mistreat them, as charged in the Indictment pursuant to Article 7(1) of the Statute. To establish the Accused's responsibility on this basis, the Prosecution must establish that the Accused entered into an agreement with the group led by Milan Lukic to murder or mistreat these people, and that each of the participants, including the Accused, shared the intent of this crime. The Trial Chamber is not satisfied that the Prosecution has established that the Accused either entered into such an agreement or had the intent to kill these persons or to inflict inhumane acts against them."
65. Krstic Trial Judgment, para. 612;
66. Stakic Trial Judgment para. 409.
67. Krstic Trial Judgment, para. 155.
68. Stakic Trial Judgment, para. 471.
69. Stakic Trial Judgment, para. 478ff., 364;
70. Simic, Trial Judgment, para. 461.
71. Kvocka Trial Judgment, para. 307.
72. See e.g. Tadic Appeal Judgment, para. 327;
73. Simic Trial Judgment para. 987.
74. See for example Brdjanin Rule 89 Trial Decision, para. 28: Milosevic Rule 89 Trial Decision.
75. Kvocka Trial Judgment, para. 306: "For example, were the entire Nazi regime to be considered a joint criminal enterprise, that would not preclude a finding that Dachau Concentration Camp functioned as a subsidiary of the larger joint criminal enterprise, despite the fact that it was established with the intent to further the larger criminal enterprise. Within some subsidiaries of the larger criminal enterprise, the criminal purpose may be more particularized: one subset may be established for purposes of forced labor, another for purposes of systematic rape for forced impregnation, another for purposes of extermination, etc."
76. Krstic Trial Judgment, para. 621.
77. Krstic Trial Judgment, para. 612.
78. Stakic Trial Judgment, para. 478ff;
79. Simic Trial Judgment para. 984: "The Trial Chamber is satisfied upon the evidence that members of the Crisis Staff, including Blagoje Simic as President; the Serb police, including the Chief of Police, Stevan Todorovic, who was also a member of the Crisis Staff; Serb paramilitaries, including 'Debeli' (Srcko Radovanovic, 'Pukovnik'), 'Crni' (Dragan Dordevic), 'Lugar' (Slobodan Miljkovic), and 'Laki' (Predrag Lazarevic); and the 17th Tactical Group of the JNA; were participants in a joint criminal enterprise, responsible for executing the common plan to persecute non-Serb civilians in the Bosanski Samac Municipality."
80. Simic Trial Judgment, para. 137.
81. Tadic Appeal Judgment, para. 196, 201.
82. Brdjanin Rule 89 Trial Decision, para. 26;
83. see also Tadic Appeals Judgment, para. 227: "This participation need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose."
84. Krnojelac Trial Judgment, para. 81.
85. Tadic Appeal Judgment, para. 199.
86. Simic Trial Judgment, para. 158 with further references.
87. Stakic Trial Judgment, para. 440.
88. Krstic Trial Judgment, para. 607, 608, 615, 338.
89. Simic Trial Judgment, para. 998: "The Trial Chamber is not satisfied that there is sufficient evidence that Miroslav Tadic participated in the persecution of non-Serb prisoners through unlawful arrest and detention. While there is evidence that he was present at the detention facilities in Bosanski Samac, and had knowledge of their existence and conditions, he rarely entered the facilities, and visited these sites only in his role of conducting exchanges. Unlike Blagoje Simic, he did not hold a leading position in the Crisis Staff. His position as member of the Exchange Commission, did not afford him authority or influence over the arrest and detention of non-Serb civilians, nor did it require that he attend all meetings of the Crisis Staff."
90. Tadic Appeal Judgment, para. 196, 199, 228.
91. Tadic Appeal Judgment, para. 227;
92. Krnojelac Trial Judgment, para. 83. "To prove the basic form of joint criminal enterprise, the prosecution must demonstrate that each of the persons charged and (if not one of those charges) the principal offender or offenders had a common state of mind, that which is required for that crime";
93. Simic Trial Judgment para. 137.
94. supra note 73; Krstic Trial Judgment, para. 613
95. Krnojelac Appeal Judgment para. 83;
96. Vasiljevic Trial Judgment para. 68
97. and Vasiljevic Appeal Judgment, para. 97.
98. Krnojelac Trial Judgment para. 486.
99. For example, the Appeals Chamber In Tadic defined the JCE in the following way: "... the Appellant participated in the armed conflict taking place between May and December 1992 in the Prijedor region. An aspect of this conflict was a policy to commit inhumane acts against the non-Serb civilian population of the territory in the attempt to achieve the creation of a Greater Serbia. It was also found that, in furtherance of this policy, inhumane acts were committed against numerous victims and 'pursuant to a recognisable plan'. The attacks on Sivci and Jaskici on 14 June 1992 formed part of this armed conflict raging in the Prijedor region. " Tadic Appeals Judgment, para 230.
100. Tadic Appeal Judgment, para. 202
101. cites Trial of Martin Gottfried Weiss and thirty-nine others, Geraneral Miltiary Goverment Court of the United States Zone, Dachau, Germany, 15th November-13th December 1945 UNWCC, vol. XI, S.5ff;
102. Trial of Josef Kramer and 44 others, British Military Court, Luneberg, 17th September-17th November, 1945, UNWCC, vol. II, S.1.ff.
103. Krnojelac Appeals Judgment para. 32, 90ff.
104. and Simic Trial Judgment para. 158.
105. Tadic Appeal Judgment, para. 203.
106. See Kvocka Trial Judgment, para. 300ff., referring to Judgments dealing with mass crimes in a sanatorium and in a children's home: the Hadamer case and the Velpke Children's Home case.
107. Krnojelac Appeal Judgment para. 96
108. see also Simic Trial Judgment, para. 158.
109. Kvocka Trial Judgment para. 320.
110. Tadic Appeal Judgment, para. 227.
111. Krstic Appeal Judgment, para. 134ff.;
112. Vasiljevic Appeal Judgment para. 133ff., 147.
113. Kvocka Trial Judgment, para. 284.
114. Tadic Appeal Judgment, para. 203 [emphasis added], see also para. 220.
115. Kvocka para. 278, note 468, citing the Dachau Concentration Camp case pp. 15-16.
116. Krnojelac Trial Judgment, para. 78
117. Krnojelac Trial Judgment, para. 78, 80;
118. Vasiljevic, Trial Judgment, para. 64;
119. Stakic Trial Judgment para. 433-435;
120. Ojdanic Appeals Decision, Separate Opinion of Judge David Hunt, para. 7ff
121. Wayne LaFave & Austin W. Scott, Jr., Criminal Law 590 (2d ed. 1986): "The established rule, as it is usually stated by courts and commentators, is that accomplice liability extends to acts of the principal in the first degree which were a 'natural and probable consequence' of the criminal scheme the accomplice encouraged or aided." See also Kadish, Sanford, Reckless Complicity, Journal of Criminal Law and Criminology 1997, p. 369ff, 373.
122. Tadic Appeal Judgment, para. 204, 220, 227.
123. Krstic Trial Judgment, para. 155.
124. See also Kordic Trial Judgment, para. 802.
125. Kordic Trial Judgment, para. 674, 802, 804/5.
126. Tadic Appeals Judgment, para. 231.
127. Krstic Trial Judgment, para. 616.
128. See the detailed examination in Ojdanic Appeal Decision, Separate Opinion of Judge Hunt, para. 9-11.
129. Stakic Trial Judgment, para. 442.
130. Stakic Trial Judgment, para. 530;
131. Brdjanin, Rule 89, Trial Decision, para. 29.
132. Brdjanin Rule 89 Appeal Decision, para. 7-9.
133. Milosevic Rule 89 Trial Decision, para. 290.
134. Tadic Appeal Judgment, para. 191.
135. Vasiljevic Appeal Judgment, para. 102.
136. See for example Krstic Trial Judgment, para. 338, 607, 608, 615.
137. Simic Trial Judgment, para. 991, 992;
138. Stakic Trial Judgment, para. 590, 818.
139. Stakic Trial Judgment, para. 742.
140. referring among others to the following German legal sources: Münchener Kommentar, Strafgesetzbuch, Vol. 1, C. H. Beck, München, 2003, Section 25, Rn 88-94, (Joecks); Bundesgerichtshof, BGHSt. 35, 347-356.
141. Simic Trial Judgment, para. 137.
142. Tadic Appeal Judgment, para. 192.
143. See for example Stakic Trial Judgment, para. 436ff.
144. Tadic Appeal Judgment, para. 227.
145. Vasiljevic Appeal Judgment, Legal Supplement, 25.02.04.
146. Tadic Appeal Judgment, para. 229.