scholarly journals Excesses of Responsibility: The Limits of Law and the Possibilities of Politics

2011 ◽  
Vol 25 (4) ◽  
pp. 407-431 ◽  
Author(s):  
Kirsten Ainley
Keyword(s):  
War Crimes ◽  
Individual Responsibility ◽  
Truth Commissions ◽  
Legal Responsibility ◽  
State Responsibility ◽  
Criminal Enterprise ◽  
Joint Criminal Enterprise ◽  
Collective Actors ◽  
International Tribunals

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.

Solving Kosovo’s problems becomes harder without Thaci

2020 ◽  
Keyword(s):  
War Crimes ◽  
Criminal Enterprise ◽  
Content Type ◽  
The Balkans ◽  
Joint Criminal Enterprise ◽  
High Profile ◽  
The Hague ◽  
Will Force ◽  
Second Wave

Significance Thaci resigned ahead of extradition to The Hague, following indictment for war crimes, including murder and torture, and participation in a joint criminal enterprise. The charges arise from Thaci’s role as a commander in the Kosovo Liberation Army (UCK). Three other high-profile political figures were also indicted and transferred to The Hague. Impacts The prospect of a crisis in Kosovo will force the incoming Biden administration to maintain its predecessor’s focus on the Balkans. The crisis will handicap a government battling a coronavirus second wave, which has already forced the country into partial lockdown. Mounting obstacles to a negotiated solution to Kosovo’s status increase the risk of a chaotic outcome, involving other parts of the Balkans.

scholarly journals Joint criminal enterprise in the practice of international criminal tribunal for the former Yugoslavia

Crimen ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 81-99
Author(s):  
Irena Čučilović
Keyword(s):  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Former Yugoslavia ◽  
Criminal Enterprise ◽  
Extended Form ◽  
Joint Criminal Enterprise

Joint criminal enterprise (JCE) is the institute first applied by the International criminal tribunal for the former Yugoslavia (ICTY) in the Tadić case, and thereafter further shaped through the practice of the ICTY despite the fact that JCE as a form of individual responsibility is not mentioned anywhere in the Statute of ICTY, neither implicitly nor explicitly. Although today there is no doubt that the Joint criminal enterprise is an institute of international criminal law, which was very often applied in the practice by both ICTY and other international ad hoc tribunals, the serious remarks to this institute do not abate. It's pointed out that this is an institute that "was created" to ensure the conviction of the defendants, which procedurally affects the prosecution, which is relieved of the burden of proving criminal responsibilities and the specific roles of each of the participants in the JCE. Besides that, at the time when this doctrine was formulated, it was not entirely clear whether it was a form of commission or a form of complicity. Only a couple of years later, in the Milutinović et al. case, the ICTY stands out that the liability based on the JCE doctrine, in fact, is a responsibility for the commission, which further compromised this doctrine. Questionless, the application of the Joint criminal enterprise doctrine in practice leads to serious violation of the fundamental principles of contemporary criminal law. With general review of the Joint criminal enterprise doctrine, in this piece of work, the author considers one case of conviction under the third (often referred to as "extended") form of JCE, in order to point out the key problems which this doctrine produces in practice.

Many Doors to International Criminal Justice

2020 ◽  
Vol 23 (1) ◽  
pp. 1-26
Author(s):  
John Braithwaite
Keyword(s):  
World War Ii ◽  
Transitional Justice ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Truth Commissions ◽  
Survivor Guilt ◽  
Truth And Reconciliation ◽  
Complex Sequences

Responsibilities to protect and prevent elite crimes are best energized by enforcement that walks through many doors. Effective deterrence is rarely delivered by the International Criminal Court. Yet deterrence is possible when it patiently cumulates through many doors. Likewise truth, justice, and reconciliation can achieve little through one door and much through many. Opening more doors to the complexly cross-cutting character of survivor guilt with mass atrocities can better open possibilities for future prevention and reconciliation than simply doors to courtrooms that find a criminal on one side of complex sequences of atrocity. The Nuremberg and Tokyo War Crimes Trials opened quickly after World War II. They did not prove to hold keys to truth and reconciliation for Germany until the Eichmann trial finished in Jerusalem in 1962. Why? Still today, non-confession by the U.S. to Hiroshima/Nagasaki as war crimes has meant truncated Japanese reconciliation. Different kinds of doors are needed with crimes like the Dresden and Tokyo fire bombing, the rape of Nanjing and the “comfort women” issue. These have included citizens tribunals, truth commissions, and indigenous justice in cases like Bougainville that rejected the truth commission model. When we reflect upon door diversity, transitional justice turns out not to be very focused on justice or international criminal law, and not to be at all transitional, but rather a maze of doors to justice of diverse kinds that open or close across the longue durée (as developed in the work of Susanne Karstedt).1

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