Joint Criminal Enterprise
Encyclopedia
Joint criminal enterprise (JCE) is a legal doctrine
used by the International Criminal Tribunal for the former Yugoslavia
to prosecute political and military leaders for mass war crimes, including genocide
, committed during the Yugoslav wars
1991-1999.
This doctrine considers each member of a organized group individually responsible for crimes committed by group within the common plan or purpose. For example, "if three people commit a bank robbery and one fatally shoots a person in the process, the law considers all guilty of murder
."
cases in which the doctrine was used under the name common purpose
(or joint enterprise) or sometimes even without specific name.
The first reference to joint criminal enterprise and its constituent elements was provided in Tadic case 1999.
The Appeals Chamber of the ICTY decided on 21 May 2003 on the following definitions:
Writing about this finding in the Journal of International Criminal Justice in 2004 Steven Powles (a barrister
who has appeared as a defence council 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."
in Germany applied this doctrine in the trials against Nazis. The Italian Supreme Court applied a similar doctrine in the trials against fascists.
Possibly, the most well-known post World War II cases are the Dachau Concentration Camp case, decided by a United States court, and the Belsen case, decided by a British military court, both sitting in Germany. In these cases, the accused held position of authority
within the hierarchy
of the concentration camps and based on that were found guilty of the charges that they had acted in pursuance of a common plan to kill or mistreat prisoners.
ed by a mob of Germans in the Essen
on 13 December 1944.
Seven persons were charged with committing a war crime, included a German captain, who had placed prisoners under the escort of a German soldier. While the escort with the prisoners was leaving, the captain had ordered to not interfere if German civilians molest the prisoners. This order had been 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, started hitting them and throwing stones. When they reached the bridge, the prisoners were thrown over the parapet of the bridge; one of the airmen was killed by the fall; two others were killed by members of the crowd.
on three separate indictments which on appeal they successfully pleaded to the ICTY Appeals Chamber should 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 one of the same and what was common between the allegations. The Appeals count decided that:
Milosevic died during the trail, but he was still found to have been a part of a joint criminal enterprise in the verdicts against Milan Martić
and Milan Babić
, who publicly admitted his own (and Milosevic's) guilt.
alleging a number of crimes which included being member of a joint criminal enterprise during the Croatian
and Bosnian
wars. "The purpose of this joint criminal enterprise was the permanent forcible removal, through the commission of crimes in violation of Articles 3 and 5 of the Statute of the Tribunal, of a majority of the Croat, Muslim and other non-Serb populations from approximately one-third of the territory of the Republic of Croatia ('Croatia'), and large parts of Bosnia and Herzegovina" and alleged that the following individuals and groups were involved in a joint criminal enterprise:
Currently (as of March 2010) Šešelj is still being tried by the ICTY in the Hague
.
On 27 May 2009, the Prosecution filed its notice of appeal in respect of all of the accused except Milan Milutinovië. On the same day, all Defence teams filed their notices of appeal.
. Croatian General Ante Gotovina
's amended indictment accuses him of participating in a Joint Criminal Enterprise featuring Croatian President Franjo Tudjman. The purpose of the conspiracy, the indictment states, was "the forcible and permanent removal of the Serb population from the Krajina
region"
Among the accused are:
and other Croat leaders from Croatia and Bosnia. The judge noted that some deceased Croatian leaders were also involved in the criminal enterprise:
The ICTY has sentenced Ante Gotovina for 24 for participation in a joint criminal enterprise, finding him guilty for 7 of 8 points of the indictment. Mladen Markac was sentenced to 18 years, while Ivan Cermak acquitted.
The International Criminal Tribunal for Rwanda
(ICTR) is an international court
established in November 1994 by the United Nations Security Council
in order to judge people responsible for the Rwandan genocide
and other serious violations of the international law
in Rwanda
, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.
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.
, author of Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, criticized the Joint Criminal Enterprise doctrine. He stated that successive rulings of the ICTY Appeals Chamber have allowed this doctrine "to get wildly out of hand". The judgement in Kvocka ruled that “JCE responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.” In Brdjanin, it ruled that “the third category of joint criminal enterprise does not require proof of intent to commit a crime.”
He argues thus that "international tribunals have abolished the very thing which criminal trials are supposed to be about. If you can be convicted of a crime as a primary perpetrator for something which you neither committed nor intended to commit, and if mens rea
can be ‘established’ by judicial ruling," this is "introducing into the heart of their systems measures which are the very hallmark of dictatorships." The chapter in Laughland's book Travesty on the subject of the Joint Criminal Enterprise doctrine is titled "Just convict everyone."
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
used by the International Criminal Tribunal for the former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
to prosecute political and military leaders for mass war crimes, including genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
, committed during the Yugoslav wars
Yugoslav wars
The Yugoslav Wars were a series of wars, fought throughout the former Yugoslavia between 1991 and 1995. The wars were complex: characterized by bitter ethnic conflicts among the peoples of the former Yugoslavia, mostly between Serbs on the one side and Croats and Bosniaks on the other; but also...
1991-1999.
This doctrine considers each member of a organized group individually responsible for crimes committed by group within the common plan or purpose. For example, "if three people commit a bank robbery and one fatally shoots a person in the process, the law considers all guilty of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
."
Definition
The first traces of joint criminal enterprise doctrine are identified in the post-World War IIWorld War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
cases in which the doctrine was used under the name common purpose
Common purpose
The doctrine of common purpose, common design or joint enterprise is a legal doctrine in some common law jurisdictions which imputes criminal liability on the participants to a criminal enterprise for all that results from that enterprise...
(or joint enterprise) or sometimes even without specific name.
The first reference to joint criminal enterprise and its constituent elements was provided in Tadic case 1999.
The Appeals Chamber of the ICTY decided on 21 May 2003 on the following definitions:
Writing about this finding in the Journal of International Criminal Justice in 2004 Steven Powles (a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
who has appeared as a defence council 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."
Post World War II trials
In the aftermath of World War II, the courts established by British and United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in Germany applied this doctrine in the trials against Nazis. The Italian Supreme Court applied a similar doctrine in the trials against fascists.
Concentration camp cases
Authority
The word Authority is derived mainly from the Latin word auctoritas, meaning invention, advice, opinion, influence, or command. In English, the word 'authority' can be used to mean power given by the state or by academic knowledge of an area .-Authority in Philosophy:In...
within the hierarchy
Hierarchy
A hierarchy is an arrangement of items in which the items are represented as being "above," "below," or "at the same level as" one another...
of the concentration camps and based on that were found guilty of the charges that they had acted in pursuance of a common plan to kill or mistreat prisoners.
Essen Lynching case
Essen Lynching case, led before a British military court, demonstrates the closest link to the joint criminal enterprise doctrine. In that case three British airmen prisoners of war had been lynchLynching
Lynching is an extrajudicial execution carried out by a mob, often by hanging, but also by burning at the stake or shooting, in order to punish an alleged transgressor, or to intimidate, control, or otherwise manipulate a population of people. It is related to other means of social control that...
ed by a mob of Germans in the Essen
Essen
- Origin of the name :In German-speaking countries, the name of the city Essen often causes confusion as to its origins, because it is commonly known as the German infinitive of the verb for the act of eating, and/or the German noun for food. Although scholars still dispute the interpretation of...
on 13 December 1944.
Seven persons were charged with committing a war crime, included a German captain, who had placed prisoners under the escort of a German soldier. While the escort with the prisoners was leaving, the captain had ordered to not interfere if German civilians molest the prisoners. This order had been 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, started hitting them and throwing stones. When they reached the bridge, the prisoners were thrown over the parapet of the bridge; one of the airmen was killed by the fall; two others were killed by members of the crowd.
Post Yugoslav War trials
The use of the JCE as an actual criminal investigation and prosecution theory first appeared at the ICTY through a written proposal to Chief Prosecutor Carla Del Ponte, which was 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 alleged to have been committed in Croatia.Slobodan Milosevic
The ICTY prosecutor indicted Slobodan MilosevicSlobodan Milošević
Slobodan Milošević was President of Serbia and Yugoslavia. He served as the President of Socialist Republic of Serbia and Republic of Serbia from 1989 until 1997 in three terms and as President of the Federal Republic of Yugoslavia from 1997 to 2000...
on three separate indictments which on appeal they successfully pleaded to the ICTY Appeals Chamber should 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 one of the same and what was common between the allegations. The Appeals count decided that:
Milosevic died during the trail, but he was still found to have been a part of a joint criminal enterprise in the verdicts against Milan Martić
Milan Martic
Milan Martić is a Serbian politician, former president of the Republic of Serbian Krajina...
and Milan Babić
Milan Babic
Milan Babić was from 1991 to 1995 the first President of the Republic of Serbian Krajina, a Croatian region at the time of the war largely populated by a Serbs of Croatia that wished to break away from Croatia.He was indicted for war crimes by the International Criminal Tribunal for the Former...
, who publicly admitted his own (and Milosevic's) guilt.
Vojislav Seselj
The ICTY prosecution indicted ŠešeljVojislav Šešelj
Vojislav Šešelj, JD is a Serbian politician, writer and lawyer. He is the founder and president of the Serbian Radical Party and was vice-president of Serbia between 1998 and 2000...
alleging a number of crimes which included being member of a joint criminal enterprise during the Croatian
Croatian War of Independence
The Croatian War of Independence was fought from 1991 to 1995 between forces loyal to the government of Croatia—which had declared independence from the Socialist Federal Republic of Yugoslavia —and the Serb-controlled Yugoslav People's Army and local Serb forces, with the JNA ending its combat...
and Bosnian
Bosnian War
The Bosnian War or the War in Bosnia and Herzegovina was an international armed conflict that took place in Bosnia and Herzegovina between April 1992 and December 1995. The war involved several sides...
wars. "The purpose of this joint criminal enterprise was the permanent forcible removal, through the commission of crimes in violation of Articles 3 and 5 of the Statute of the Tribunal, of a majority of the Croat, Muslim and other non-Serb populations from approximately one-third of the territory of the Republic of Croatia ('Croatia'), and large parts of Bosnia and Herzegovina" and alleged that the following individuals and groups were involved in a joint criminal enterprise:
Currently (as of March 2010) Šešelj is still being tried by the ICTY in the Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
.
Kosovo
According to the ICTY prosecutors 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 a verdicts that:- Nikola Šainović, "had substantial de facto powers over both the MUP and the VJ operating in Kosovo, and that he was the political co-ordinator of these forces. It is convinced that he made a significant contribution to the joint criminal enterprise and that, indeed, he was one of the most crucial members of that common enterprise. He was found guilty "of counts 1 to 5 of the Indictment, by commission as a member of a joint pursuant to Article 7(1) of the Statute".
- Nebojša Pavković "had substantial de jure and de facto command authority over VJ forces in Kosovo in 1998 and 1999, and that he was in a position of influence, including through his participation in the Joint Command. There is no doubt that his contribution to the joint criminal enterprise was significant, as he utilised the VJ forces at his disposal to terrorise and violently expel Kosovo Albanian civilians from their homes." He was found guilty of "counts 1 to 5 of the Indictment, by commission as a member of a joint criminal enterprise pursuant to Article 7(1) of the Statute".
- Sreten Lukić "had substantial authority over MUP units deployed in Kosovo ... the Chamber finds that Lukić was indeed an important participant in the joint criminal enterprise, and made a significant contribution through his control of the MUP forces involved in its execution." He was found guilty of "counts 1 to 5 of the Indictment, by commission as a member of a joint criminal enterprise pursuant to Article 7(1) of the Statute".
On 27 May 2009, the Prosecution filed its notice of appeal in respect of all of the accused except Milan Milutinovië. On the same day, all Defence teams filed their notices of appeal.
Indictments to Croat leaders
The Court found that the Croatian leaders also participated in a joint criminal enterprise with the goal of anexing parts of Bosnia and Hercegovina and creating Greater CroatiaGreater Croatia
Greater Croatia is a term applied to certain currents within Croatian nationalism. In one sense, it refers to the territorial scope of the Croatian people, emphasising the ethnicity of those Croats living outside Croatia...
. Croatian General Ante Gotovina
Ante Gotovina
Ante Gotovina is a former Senior Corporal of the French Foreign Legion and former Lieutenant General of the Croatian Army who served in the Croatian War for Independence...
's amended indictment accuses him of participating in a Joint Criminal Enterprise featuring Croatian President Franjo Tudjman. The purpose of the conspiracy, the indictment states, was "the forcible and permanent removal of the Serb population from the Krajina
Krajina
-Etymology:In old-Croatian, this earliest geographical term appeared at least from 10th century within the Glagolitic inscriptions in Chakavian dialect, e.g. in Baška tablet about 1105, and also in some subsequent Glagolitic texts as krayna in the original medieval meaning of inlands or mainlands...
region"
Among the accused are:
- Slobodan PraljakSlobodan PraljakSlobodan Praljak is a Croatian politician, HV and HVO general from Bosnia and Herzegovina...
- Ante GotovinaAnte GotovinaAnte Gotovina is a former Senior Corporal of the French Foreign Legion and former Lieutenant General of the Croatian Army who served in the Croatian War for Independence...
- Ivan ČermakIvan CermakIvan Čermak is a Croatian politician and soldier.He was born in the municipality of Zagreb . He became a small businessman in the 1980s...
- Mladen MarkačMladen MarkacMladen Markač , is a former Croatian military officer. He was a Commander of Croatian Special Police during Operation Storm during the Croatian War of Independence , and afterwords held the rank of Colonel General...
and other Croat leaders from Croatia and Bosnia. The judge noted that some deceased Croatian leaders were also involved in the criminal enterprise:
The ICTY has sentenced Ante Gotovina for 24 for participation in a joint criminal enterprise, finding him guilty for 7 of 8 points of the indictment. Mladen Markac was sentenced to 18 years, while Ivan Cermak acquitted.
Rwandan Genocide trials
International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of international law in Rwanda, or by Rwandan...
(ICTR) is an international court
International court
International courts are formed by treaties between nations, or under the authority of an international organization such as the United Nations — this includes ad hoc tribunals and permanent institutions, but excludes any courts arising purely under national authority.Early examples of...
established in November 1994 by the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
in order to judge people responsible for the Rwandan genocide
Rwandan Genocide
The Rwandan Genocide was the 1994 mass murder of an estimated 800,000 people in the small East African nation of Rwanda. Over the course of approximately 100 days through mid-July, over 500,000 people were killed, according to a Human Rights Watch estimate...
and other serious violations of the international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
in Rwanda
Rwanda
Rwanda or , officially the Republic of Rwanda , is a country in central and eastern Africa with a population of approximately 11.4 million . Rwanda is located a few degrees south of the Equator, and is bordered by Uganda, Tanzania, Burundi and the Democratic Republic of the Congo...
, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.
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.
Criticism
John LaughlandJohn Laughland
John Laughland is a British eurosceptic conservative journalist, academic and author who writes on international affairs and political philosophy.-Career:...
, author of Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, criticized the Joint Criminal Enterprise doctrine. He stated that successive rulings of the ICTY Appeals Chamber have allowed this doctrine "to get wildly out of hand". The judgement in Kvocka ruled that “JCE responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.” In Brdjanin, it ruled that “the third category of joint criminal enterprise does not require proof of intent to commit a crime.”
He argues thus that "international tribunals have abolished the very thing which criminal trials are supposed to be about. If you can be convicted of a crime as a primary perpetrator for something which you neither committed nor intended to commit, and if mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
can be ‘established’ by judicial ruling," this is "introducing into the heart of their systems measures which are the very hallmark of dictatorships." The chapter in Laughland's book Travesty on the subject of the Joint Criminal Enterprise doctrine is titled "Just convict everyone."
See also
- Common purposeCommon purposeThe doctrine of common purpose, common design or joint enterprise is a legal doctrine in some common law jurisdictions which imputes criminal liability on the participants to a criminal enterprise for all that results from that enterprise...
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Role of the media in the Yugoslav wars
- International Criminal Tribunal for the former YugoslaviaInternational Criminal Tribunal for the former YugoslaviaThe International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
- International Criminal Tribunal for RwandaInternational Criminal Tribunal for RwandaThe International Criminal Tribunal for Rwanda is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of international law in Rwanda, or by Rwandan...