Joint Criminal Enterprise: Cambodia's Reply to Tadić

2011 ◽  
Vol 11 (1) ◽  
pp. 137-154 ◽  
Author(s):  
Luke Marsh ◽  
Michael Ramsden
Keyword(s):  
Ad Hoc ◽  
Criminal Responsibility ◽  
Trial Chamber ◽  
Appeal Chamber ◽  
Criminal Enterprise ◽  
Joint Criminal Enterprise ◽  
Legal Foundation ◽  
Principle Of Legality ◽  
Individual Criminal Responsibility ◽  
Expanded Form

AbstractThe doctrine of Joint Criminal Enterprise (JCE), which imposes individual criminal responsibility on an accused for their participation in a group's common criminal plan, rose to prominence in the ICTY Appeal Chamber decision, Prosecutor v. Tadić. Since Tadić, there has been a general reluctance by international ad hoc tribunals to review the legal foundation of JCE. However, on 20 May 2010, the ECCC Pre-Trial Chamber (PTC) considered the applicability of JCE to the atrocities which occurred in Cambodia during 1975-1979 - the period within the tribunal's temporal jurisdiction. The PTC has, unlike any other ad hoc tribunal to date, subjected the reasoning in Tadić to close scrutiny. This article will analyse the PTC's decision. In squarely contradicting Tadić on the expanded form of JCE, its findings are to be welcomed. The PTC's decision should be upheld on appeal in order to uphold the principle of legality; to safeguard the continued respect, credibility and future legacy of the ECCC trial process.

Individual Criminal Responsibility in the Execution of a "Joint Criminal Enterprise" in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia

2006 ◽  
Vol 6 (1) ◽  
pp. 63-120 ◽  
Author(s):  
Attila Bogdan
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
Criminal Enterprise ◽  
Customary International Law ◽  
Joint Criminal Enterprise ◽  
Individual Criminal Responsibility

AbstractThis article explores the development of "joint criminal enterprise" form of responsibility in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (hereinafter "Yugoslav Tribunal"). Although "joint criminal enterprise" does not appear in the Yugoslav Tribunal Statute, this form of responsibility was read into the Statute by the tribunal judges and is repeatedly relied on in finding individuals guilty in cases before the tribunal. In particular, ever since the Appeals Chamber in Prosecutor v. Tadic held that "joint criminal enterprise", as a form of accomplice liability, is "firmly established in customary international law", other Trial and Appeals Chamber decisions continue to follow this holding. This article takes a critical look at some of the fundamental issues associated with the development of "joint criminal enterprise" at the Yugoslav Tribunal, in particular the methodology employed by the Appeals Chamber in Tadic. In addition, the article also examines the similarities between "joint criminal enterprise" and U.S. conspiracy law, and whether the use of "joint criminal enterprise" at the Yugoslav Tribunal violates the "principles of legality".

Commentary: A First Attempt to Adjudicate Conduct of Hostilities Offences: Comments on Aspects of the ICTY Trial Decision in the Prosecutor v. Tihomir Blaškić

2000 ◽  
Vol 13 (4) ◽  
pp. 931-947 ◽  
Author(s):  
W.J. Fenrick
Keyword(s):  
Ad Hoc ◽  
Criminal Responsibility ◽  
Trial Chamber ◽  
Willingness To Accept ◽  
Legal Analysis ◽  
Judicial Decision ◽  
The Relationship ◽  
Individual Criminal Responsibility

The ICTY Trial Judgment in the Prosecutor v. Tihomir Blaškić is the first judicial decision to explicitly address unlawful attack charges. This article reviews the judgment focusing on how the trial chamber addressed individual criminal responsibility, unlawful attack charges, the crime against humanity of persecution, and the relationship between the two offences. The author observes that the decision contains little legal analysis but a review of the factual findings sheds light on legal assumptions. In particular, the findings indicate a willingness to accept that indiscriminate or disproportionate attacks might provide evidence of attacks essentially directed against civilians, a tendency to regard ad hoc ill equipped resistance to an attack as equivalent to no resistance, and a tendency to evaluate the lawfulness of an attack on the basis of what happened after the attack as well as during the attack.

Point of No Return: Joint Criminal Enterprise in Brđanin

2010 ◽  
Vol 23 (1) ◽  
pp. 137-164 ◽  
Author(s):  
CLIFF FARHANG
Keyword(s):  
International Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Enterprise ◽  
Precise Nature ◽  
Joint Criminal Enterprise ◽  
Point Of No Return ◽  
The Common ◽  
Individual Criminal Responsibility ◽  
Traditional Doctrine

AbstractIn the Brđanin and Krajišnik judgments, the ICTY Appeals Chamber found that the accused may incur criminal liability for crimes carried out by low-level non-joint criminal enterprise (JCE) physical perpetrators who are used as tools or are otherwise instrumentalized by JCE members other than the accused to carry out the crimes of the common plan. Similarly, the Appeals Chamber held that the accused may also incur liability for crimes of excess committed by non-JCE perpetrators. However, as for the precise nature of liability in such cases, no clarification was provided. From this ambiguity the author detects an inclination on the part of the Appeals Chamber to construe JCE not only as an expression of commission but also of complicity. The author then identifies and elaborates the theoretical difficulties that this construction would instil in the traditional doctrine of JCE as formulated by the Tadić Appeals Chamber and the international law of individual criminal responsibility. He suggests that awareness of these very problems of theory is the reason behind the conspicuous ambiguity in Brđanin and Krajišnik as to the nature of JCE liability.

scholarly journals Joint Criminal Confusion

2009 ◽  
Vol 12 (3) ◽  
pp. 406-419 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Rome Statute ◽  
Criminal Responsibility ◽  
Criminal Enterprise ◽  
Joint Liability ◽  
Joint Criminal Enterprise ◽  
Holistic Interpretation ◽  
Mental Element ◽  
Individual Criminal Responsibility

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 with an amendment that replaces Article 25(3)(d) with a clear provision specifically incorporating some joint liability doctrine, albeit a version that excludes the worst excesses of the doctrine known as joint criminal enterprise.

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

Part 2 Attributing Criminal Responsibility, 7 Crime‐Specific and Leadership Modalities

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Responsibility ◽  
Military Leadership ◽  
Criminal Enterprise ◽  
Joint Criminal Enterprise ◽  
International Crimes

This chapter discusses crime-specific modes of liability and theories of liability that are referred to as ‘leadership modalities’. The former regard complicity in genocide and inchoate crimes of genocide. The latter concern liability theories that have been conceptualized or developed specifically to apply to political and military leadership. Leadership modalities, such as joint criminal enterprise at the leadership level and indirect (co-)perpetration, address the responsibility of intellectual perpetrators, those who are considered ‘most responsible’ for international crimes while being far removed from the scene of the crimes.

The First Trial of Former Members of the Kosovo Liberation Army: Prosecutor v. Fatmir Limaj, Haradin Bala, and Isak Musliu

2006 ◽  
Vol 19 (2) ◽  
pp. 459-476
Author(s):  
PASCALE CHIFFLET
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
Eyewitness Identification ◽  
International Criminal ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Criminal Enterprise ◽  
Civilian Population ◽  
Joint Criminal Enterprise

In its Judgement issued on 30 November 2005 in Prosecutor v. Limaj et al., Trial Chamber II of the ICTY found that an armed conflict existed in Kosovo between the Kosovo Liberation Army and the Serbian forces as of the end of May 1998. It held, however, that the evidence did not establish that there was a widespread or systematic attack by the KLA directed against a civilian population at the relevant time. The first trial of former members of the Kosovo Liberation Army also gave rise to a number of significant developments in the ICTY's jurisprudence relating to issues of international criminal law and procedure, such as the treatment of hostile witnesses and of eyewitness identification evidence, as well as the proof of the existence of a joint criminal enterprise.

The Second Srebrenica Trial: Prosecutor v. Vidoje Blagojević and Dragan Jokić

2005 ◽  
Vol 18 (3) ◽  
pp. 523-540
Author(s):  
KATHERINE GALLAGHER
Keyword(s):  
Trial Chamber ◽  
Criminal Enterprise ◽  
Muslim Population ◽  
Joint Criminal Enterprise ◽  
Safe Area ◽  
Growing Body

In its judgment issued on 17 January 2005, in Prosecutor v. Vidoje Blagojević and Dragan Jokić, Trial Chamber I, Section A, found that genocide had been committed against the Bosnian Muslim population following the fall of the Srebrenica ‘safe area’ in July 1995. The Trial Chamber's findings that forcible transfer, when combined with other acts, can constitute an underlying act of genocide (namely, causing serious mental harm to members of a group) contributes to a growing body of jurisprudence on genocide. The Trial Chamber found the accused guilty of such serious crimes as complicity in genocide, extermination, persecutions and murder. It determined that the appropriate mode of liability for each was aiding and abetting rather than committing through participation in a joint criminal enterprise, Accordingly the Trial Chamber sentenced Vidoje Blagojević to 18 years' imprisonment and Dragan Jokić to nine years' imprisonment.

Bemba and the Individualisation of War: Reconciling Command Responsibility under Article 28 Rome Statute with Individual Criminal Responsibility

2020 ◽  
Vol 20 (4) ◽  
pp. 669-700
Author(s):  
Alexandre Skander Galand
Keyword(s):  
Central African Republic ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Fundamental Rights ◽  
Appeal Chamber ◽  
Military Commanders ◽  
Commander In Chief ◽  
Individual Criminal Responsibility

Never has the doctrine of command responsibility been shaken as when the Appeal Chamber of the International Criminal Court issued the Bemba Appeal Judgment. The latter solely addresses whether the defendant – Jean-Pierre Bemba, former Commander-in-chief of the Mouvement de libération du Congo – took reasonable and necessary measures to prevent or punish his subordinates’ crimes perpetrated in the Central African Republic. Yet, the various dissenting, separate and concurring opinions advocate opposing positions on the scope, elements and nature of this notorious doctrine. This paper relocates the ‘sharp disagreements’ that surfaced during the Bemba Appeal Judgment within the broader phenomena of the individualisation of war. Through an in-depth examination of the interpretation offered by the appellate judges, it designs a model of command responsibility that properly individualises Article 28 Rome Statute, and, by the same token, respect the fundamental rights of military commanders.

scholarly journals Stretching the Joint Criminal Enterprise Doctrine to the Extreme: When Culpability and Liability Do Not Match

2016 ◽  
Vol 16 (5) ◽  
pp. 761-795
Author(s):  
Natalia Perova
Keyword(s):  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Common Law ◽  
International Criminal Law ◽  
Criminal Enterprise ◽  
Current Form ◽  
Joint Criminal Enterprise ◽  
Common Purpose ◽  
Joint Enterprise

Joint criminal enterprise (jce) has caused a lot of concern amongst international criminal law practitioners and academics since its first appearance at the ad hoc Tribunals. A recent landmark decision, by the uk Supreme Court in Jogee, that overruled 30 years of common law development on joint enterprise, stimulates further discussions on whether jce in its current form fairly reflects the balance between culpability and corresponding liability of the defendant. This article explores this issue by suggesting that the level of culpability of defendants does not match the degree of liability they incur under jce iii. The article dissects the jce iii mode of liability by considering it a ‘two-crime liability’: a common purpose crime and a foreseeable crime, and compares it with aiding/abetting. This article argues that the level of culpability of defendants under jce iii is much lower than their liability for the crimes they are convicted of.

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