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.

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.

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".

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.

Legislated Out of Existence: Mass Arbitrary Deprivation of Nationality Resulting in Statelessness as an International Crime

2020 ◽  
Vol 20 (6) ◽  
pp. 1026-1067
Author(s):  
Cóman Kenny
Keyword(s):  
International Law ◽  
Rome Statute ◽  
Legal Status ◽  
Criminal Responsibility ◽  
International Crime ◽  
World War ◽  
Mass Atrocity ◽  
The Individual ◽  
First Time ◽  
Individual Criminal Responsibility

Abstract A state’s prerogative to legislate for nationality remains subject to international law, with the arbitrary deprivation of nationality prohibited. The human rights implications of statelessness are profound, permeating all aspects of life and resulting in the marginalisation and oppression of those affected. Nonetheless, states have implemented laws depriving particular groups of legal status and making them stateless. In addition to the severe impact on the individual, such targeted discrimination creates a permissive atmosphere of dehumanisation that threatens a group’s existence and has been the precursor to mass atrocity. This article assesses, for the first time, whether individual criminal responsibility could be established for the creation or maintenance of a state policy to arbitrarily deprive a group of its nationality, rendering its members stateless. Based on post-World War ii precedent, it argues that such conduct could constitute a crime under the Rome Statute.

‘Guilty of Having Been Obedient’

2021 ◽  
pp. 1-35
Author(s):  
Emmanuel Sarpong Owusu
Keyword(s):  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
War Crimes Trials ◽  
The Subject ◽  
Individual Criminal Responsibility

Abstract One of the most debated subjects among academics and experts in the fields of International Humanitarian Law and International Criminal Law is the principle of individual criminal responsibility for war crimes. Even more contentious is that aspect of the principle relating to crimes committed under superior orders – a legal strategy employed by many defendants at the Nuremberg war crimes trials. This paper contributes to the debate by establishing the extent to which Article 33 of the Rome Statute, which adopts the conditional liability approach, is justified. The article achieves its objective by critically discussing the subject from a combination of legal, psychological and moral philosophical perspectives. It presents a historical account of the superior orders defence, highlighting how two conflicting liability doctrines, absolute liability and conditional liability, have traditionally been applied by the courts, and taking a stance in favour of the latter. The article, however, underlines some pressing questions that Article 33 raises. It offers a brief exegesis of the emotion of fear to show how it may destroy voluntariness, arguing that as a modifier of voluntariness, grave fear, in certain circumstances, should exculpate perpetrators in claims of crime under superior orders, even where the orders were manifestly unlawful.

The Modes of Liability at the icc: The Labels that Don’t Always Stick

2015 ◽  
Vol 15 (4) ◽  
pp. 629-664 ◽  
Author(s):  
Marina Aksenova
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Practical Application ◽  
Long Run ◽  
Degree Of Control ◽  
Individual Criminal Responsibility

The provision in the Rome Statute of the International Criminal Court (icc) on individual criminal responsibility can be considered sufficiently elaborated. The level of detail of Article 25(3) does not, however, prevent heated debates on its practical application. The Court initially leaned towards the expanded notion of “commission”, interpreted to cover instances where persons do not physically perpetrate the crime but enjoy certain degree of control over it. Underlying this trend was the premise that “commission” denotes a higher degree of blameworthiness, and is therefore more appropriate to describe involvement in mass atrocities. In contrast, the Katanga trial judgement, issued in March last year, undermined the conception of perpetration as a superior form of responsibility in international criminal law. Which position will prevail in a long run? The article explores the two convictions rendered by the Court to date and argues that the answer to this question is still unclear.

VI Attempt as a Special Form of Individual Criminal Responsibility

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Criminal Law ◽  
Special Form ◽  
Rome Statute ◽  
Criminal Responsibility ◽  
Comparative Law ◽  
Essential Elements ◽  
International Criminal Law ◽  
Actus Reus ◽  
The Moment ◽  
Individual Criminal Responsibility

This chapter first explains why attempt – an incomplete offence lacking the fulfilment of the actus reus of the respective crime – should be punishable at all and whether/how it is punishable under International Criminal Law. This chapter develops the essential elements of attempt liability on the basis of comparative law with a view to most important national legal systems . It analyses in detail the provision in the Rome Statute and proposes a ‘formula of approximation’ with regard to ‘commencement of execution’ stage (that is the moment of punishability) of attempt. It then applies this attempt formular to the international core crimes. Last but not least, abandonment of attempt is also discussed.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.25 Individual criminal responsibility/Responsabilité pénale individuelle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Legal Traditions ◽  
Individual Criminal Responsibility

This chapter comments on Article 25 of the Rome Statute of the International Criminal Court. Article 25 distinguishes various forms of criminal participation. Like much of the Rome Statute, it was a negotiated compromise crafted by jurists from different legal traditions. Concepts and words in one system did not necessarily have the same connotations as they did in others. Judge Van den Wyngaert has described article 25 as being ‘based upon an eclectic combination of sources from several national legal traditions’, adding that ‘such multi-faceted origins comes as no surprise, considering the States Parties' obvious wish to find a compromise between different legal traditions’.

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