Joint Criminal Enterprise: Wikis

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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.[1] 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."[2]

Contents

Definition

Without a certain degree of cooperation and coordination of actions, it is virtually impossible to perpetrate atrocities such as genocide or crimes against humanity.[3]

The first traces of joint criminal enterprise doctrine are identified in the post-World War II cases in which the doctrine was used under the name common purpose (or joint enterprise) or sometimes even without specific name.[4]

The first reference to joint criminal enterprise and its constituent elements was provided in Tadic case 1999. The actus reus for this war crime comprises the simultaneous existence of the three following elements[4]:

  • A plurality of persons.
  • The existence of a common plan, design or purpose which amounts to or involves the commission of a crime.
  • Participation of the accused in the common design involving the perpetration of crimes.

However, it was not until the Milosevic case that the JCE was actually used as the prosecution theory and the first investigation by which the case was indeed built upon.[5]

Post World War II trials

In the aftermath of World War II, the courts established by British and United States in Germany applied this doctrine in the trials against Nazis.[4] The Italian Supreme Court applied a similar doctrine in the trials against fascists.[4]

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Concentration camp cases

Former guards of Belsen Concentration Camp load the bodies of dead prisoners onto a lorry for burial (April 1945).

Possibly, the most well-known post World War II cases are the 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.[4] 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.[4]

Essen Lynching case

Essen Lynching case, led before a British military court, demonstrates the closest link to the joint criminal enterprise doctrine.[4] In that case three British airmen prisoners of war had been lynched 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.[4]

Post Yugoslav War trials

Indictments of Alleged War Criminals

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. [6] [7]

The Court has determined, through a series of trials, that some of the top political and military leaders participated in a joint criminal enterprise. The indictments maintain that the participants' goal was the creation of Greater Serbia from the disintegrating Yugoslavia.[8] Within that goal, they have commited numerous war crimes of ethnic cleansing such as Srebrenica Genocide. [9]

According to the Prosecution, in a joint criminal enterprise were involved[8]:

Territories under control of Serbian forces during the conflict.

and other Serb leaders from Serbia, Montenegro, Bosnia and Croatia.

Complicity in a joint criminal enterprise included also "Serbian forces", that includes the Yugoslav People's Army (JNA), later the Yugoslav Army (VJ), the newly formed Serbian Territorial Defense of Bosnia and Herzegovina and Croatia, Republic of Serbian Krajina Army, the Army of the Republika Srpska, territorial defense of Serbia and Montenegro, the police of Serbia and the police of Republika Srpska, including national security, special police forces of the Krajina region known as "Martićevci, as well as all Serbian paramilitary forces and volunteer units.[8]

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 Croatia.[10] 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"[11]

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:

It is true that Mr. Tudjman was not charged because he is dead, but alive, he would be here on the accused bench. General Bobetko, that he was alive, he would be accused of the bench. It should be borne in mind when talking about a joint criminal enterprise.[10]
Judge Jean-Claude Antonetti

Criticism

John Laughland, author of Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, wrote about the Joint Criminal Enterprise Doctrine in 2006. He wrote that

the International Criminal Tribunal for the former Yugoslavia...has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’ It uses this concept, which is so contentious that it is unconstitutional in many jurisdictions, in order to convict people of crimes when even the Tribunal accepts that they did not, in fact, commit them or that the proof is lacking to show that they did.

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."

References

See also

External links


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