Joint criminal enterprise (JCE) is alegal doctrine that has been used duringwar crimes tribunals to prosecute individuals in a group for the actions of said group. This doctrine considers each member of an organized group individually responsible for crimes committed by the group within its common plan or purpose.[1]
The legal doctrine specifically arose through the application of the idea ofcommon purpose and has been applied by theInternational Criminal Tribunal for the former Yugoslavia (ICTY) to prosecute political and military leaders for mass war crimes, includinggenocide, committed during theYugoslav Wars from 1991 to 1999.
For example, "if three people commit a bank robbery and one fatally shoots a person in the process, the law considers all guilty ofmurder"[2] via the concept of "collective liability" where more than one person can share liability and punishment for the actions of another person. The idea of "collective liability," however, has not been universally accepted and is considered by some to be a form of human rights abuse, while others believe it is just.[citation needed]
The first usages of joint criminal enterprise doctrine have been identified in post-World War II cases in which the doctrine was used under the namecommon purpose (or joint enterprise), or without specific naming.[3]
Without a certain degree of cooperation and coordination of actions, it is virtually impossible to perpetrate atrocities such asgenocide orcrimes against humanity.[4]
However, the origins of the doctrine may also be influenced by thecommon law of England, which introduced the principle into criminal law in the U.K. and otherCommonwealth nations such as Australia. A similar legal principle can also be found inTexas,United States, where it is known as thelaw of parties. However, the notion of collective liability and shared punishment for the actions of others, as if all perpetrated the same deed, may be much older; for instance, it was used to justify extermination of religious and cultural groups, such as theAlbigensian "Heretics" and those who harbored them.
The doctrine has also been used at theInternational Criminal Tribunal for Rwanda and theSpecial Court for Sierra Leone. Meanwhile, theInternational Criminal Court uses a similar but different doctrine of co-perpetratorship, which some ICTY judges attempted to introduce instead of joint criminal enterprise.[5]
The first reference to joint criminal enterprise and its constituent elements was provided in the Tadić case of 1999 in Yugoslavia.[3] The Appeals Chamber of the ICTY decided on 21 May 2003 on the following definitions:[6]
The Tribunal's jurisdictionratione personae: in order to fall within the Tribunal's jurisdiction ratione personae, any form of liability must satisfy four preconditions: (i) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existed under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently foreseeable at the relevant time to anyone who acted in such a way; and (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended.
Joint criminal enterprise and the Tribunal's Statute: the reference to that crime or to that form of liability does not need to be explicit to come within the purview of the Tribunal's jurisdiction. The Statute of the ICTY is not and does not purport to be a meticulously detailed code providing for every possible scenario and every solution thereto. It sets out in somewhat general terms the jurisdictional framework within which the Tribunal has been mandated to operate. The list in Article 7(1) appears to be non-exhaustive in nature as the use of the phrase 'or otherwise aided and abetted' suggests.
The nature of joint criminal enterprise: insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated. Joint criminal enterprise is a form of 'commission' pursuant to Article 7(1) of the Statute.
Joint criminal enterprise and conspiracy: joint criminal enterprise and 'conspiracy' are two different forms of liability. While mere agreement is sufficient in the case of conspiracy, the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise.
Joint criminal enterprise and membership in a criminal organisation: criminal liability pursuant to joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.
Writing about this finding in theJournal of International Criminal Justice in 2004, Steven Powles—abarrister who appeared as defense counsel in matters before the ICTY and the Special Court for Sierra Leone—states that the Appeals Chamber was obliged to make this declaration because there was no specific mention of "joint criminal enterprise" in the court's statutes and that "this is not ideal [because] criminal law, especially international criminal law, requires clear and certain definitions of the various bases of liability, so as to enable the parties, both the prosecution and, perhaps more importantly, the defence to prepare for and conduct the trial."[7]
Critics have argued that joint criminal enterprise can lead to excessive legal process and punishments, that it lowers the evidential bar in favor of prosecution, and that it runs counter to the spirit ofBlackstone's formulation. Supporters, however, argue that it ensures those contributing to or instigating a criminal act are properly held accountable for their involvement.
In the aftermath of World War II, the courts established by theUnited Kingdom and theUnited States in Germany applied an early vision of the joint criminal enterprise doctrine in the trials againstNazis.[3] Additionally, theItalian Supreme Court applied a similar doctrine in the trials againstfascists.[3]
In the post-World War IIDachau Concentration Camp case, decided by a United States court, and theBelsen case, decided by a British military court, both in Germany,[3] the accused held positions ofauthority within thehierarchy of theNazi concentration camps. As such, they were found guilt insofar as they had acted in pursuance of a common plan to kill or mistreat prisoners even if they had not personally committed the acts.[3]
The Essen lynching case, conducted before a British military court, bears the closest link to the joint criminal enterprise doctrine.[3] In that case, three British airmen (prisoners of war) had beenlynched by a mob of Germans inEssen on 13 December 1944.
Seven persons were charged with committing a war crime, including a German captain who had placed prisoners under the escort of a German soldier. While the escort was leaving, the captain ordered the soldier not to interfere if German civilians harassed the prisoners. This order was given in a loud voice so that the gathering crowd could hear. When the prisoners of war were marched through one of the main streets of Essen, the crowd grew bigger, after which they started hitting the prisoners of war and throwing stones at them. When the escort reached the bridge, the prisoners were thrown over its parapet; one of the airmen was killed by the fall, while the two others were killed by members of the crowd.[3]
Ultimately, seven of the 10 people considered to have been involved in the case were convicted.[8]
The use of joint criminal enterprise as an actual criminal investigation and prosecution theory first appeared at the ICTY through a written proposal to Chief Prosecutor Carla Del Ponte which had been developed and authored by American prosecutor Dermot Groome (at the time, the legal officer for the Bosnia case) and American Investigator John Cencich, head of the Milosevic investigation for crimes allegedly committed in Croatia.[9][10] (Cencich provides an in-depth look at the actual development of the investigation and prosecution theory of the JCE in his doctoral dissertation at the University of Notre Dame,[11] in theInternational Criminal Justice Review,[12] and in his book,The Devil's Garden: A War Crimes Investigator's Story.[13])
The ICTY prosecutor indictedSlobodan Milošević on three separate indictments which, upon appeal, were successfully considered as one indictment. As the prosecution had not used the same language in all three indictments, it was left to the Court of Appeal to decide if the alleged criminal enterprises in the three indictments were the same by determining what was common between the allegations. The ICTY Appeals count decided that:[14]
A joint criminal enterprise to remove forcibly the majority of the non-Serb population from areas which the Serb authorities wished to establish or to maintain as Serbian controlled areas by the commission of the crimes charged remains the same transaction notwithstanding the fact that it is put into effect from time to time and over a long period of time as required. Despite the misleading allegation in the Kosovo indictment, therefore, the Appeals Chamber is satisfied that the events alleged in all three indictments do form part of the same transaction.
Milošević died during the trial, but he was still found to have been a part of a joint criminal enterprise in the verdicts againstMilan Martić[15] andMilan Babić, the latter of whom publicly admitted his own (and Milošević's) guilt.[16]
According to the ICTY prosecutor's indictment, Milutinović et al., Nikola Šainović, Nebojša Pavković, and Sreten Lukić, along with others, participated in a joint criminal enterprise to modify the ethnic balance in Kosovo in order to ensure continued control by the FRY and Serbian authorities over the province. On 26 February 2009, the court returned the following verdicts:[17][18][19][20]
On 27 May 2009, the Prosecution filed its notice of appeal in respect of all of the accused except Milan Milutinović. On the same day, all Defence teams filed their notices of appeal.[19]
ICTY found, in a first-instance verdict, that GeneralAnte Gotovina participated in a joint criminal enterprise with Croatian PresidentFranjo Tuđman with the goal to do "the forcible and permanent removal of the Serb population from the [territory occupied by the forces of the]Republic of Serbian Krajina". Nevertheless, ICTY's appeals chamber acquitted Ante Gotovina, Ivan Čermak, and Mladen Markač of all charges, including the one of participation in the joint criminal enterprise. In April 2001, ICTY chief prosecutorCarla Del Ponte stated that she was preparing to indict Tudjman prior to his death in December 1999.[21]
In May 2013,Jadranko Prlić and others were found guilty for taking part in the joint criminal enterprise with Tudjman for crimes committed in theCroatian Republic of Herzeg-Bosnia against Muslims.[22] However, on 19 July 2016, the Appeals Chamber concluded that the "Trial Chamber made no explicit findings concerning [Tuđman's] participation in the joint criminal enterprise and did not find [him] guilty of any crimes."[23] In November 2017, the ICTY reaffirmed the first-instance verdict that Tudjman, as well as some other senior Croatian officials, had participated in a joint criminal enterprise with the defendants with the aim of persecuting Bosniaks.[24]
TheInternational Criminal Tribunal for Rwanda (ICTR) was aninternational court established in November 1994 by theUnited Nations Security Council in order to judge people responsible for theRwandan genocide and other serious violations ofinternational law inRwanda, as well as similar crimes committed by Rwandan citizens in nearby states in 1994.[25]
At the Rwanda trials, the prosecution originally alleged that the genocidal common plan had been drawn up in 1990, but this theory was dismissed in December 2008 when the defendants in the mammoth "Military I" trial were acquitted of conspiracy to commit genocide.[26]
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