Testing the Legitimacy of the Joint Criminal Enterprise Doctrine in the ICTY: A Comparison of Individual Liability for Group Conduct in International and Domestic Law

By Gibson, Catherine H. | Duke Journal of Comparative & International Law, Spring 2008 | Go to article overview

Testing the Legitimacy of the Joint Criminal Enterprise Doctrine in the ICTY: A Comparison of Individual Liability for Group Conduct in International and Domestic Law


Gibson, Catherine H., Duke Journal of Comparative & International Law


INTRODUCTION

On June 14, 1992, a group of armed men entered Jaskici, a village in the Prijedor region of Bosnia. (1) The group summoned Jaskici residents from their homes and separated the men from the women and children. (2) The men were beaten and removed from the village, and after the group left the area, five men from Jaskici were found dead. (3) In the first trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY), several witnesses identified Dusko Tadic as one of the armed men who had entered Jaskici, but none of them could specifically link him to these killings.' Despite this lack of direct evidence, the ICTY Appeals Chamber held that Tadic could be found criminally responsible for the deaths of these five men. (5)

Tadic's liability in this case was based on the joint criminal enterprise (JCE) doctrine. Though ICTY prosecutors now frequently employ this doctrine, it has proven controversial in the international community. On one hand, the ICTY Appeals Chamber asserts that recognition of group criminality is essential for the enforcement of international criminal law because "[m]ost of the time these [international] crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality." (6) On the other hand, as one critic of JCE liability has argued, "[w]hen JCEs are very large or have circuitous command structures, the accused and the triggerman can be far removed from each other" and "fairness and the need to establish legitimacy oppose allowing JCE [liability] to become a doctrine of guilt by association." (7) Some scholars have even argued that JCE liability "has the potential to stretch criminal liability to a point where the legitimacy of international criminal law will be threatened...." (8)

Despite this controversy, JCE liability is actually one of many schemes in both international and domestic law that base individual liability on conduct of a group. This paper compares four prominent examples of such liability, and concludes that variations in these schemes correspond to particular characteristics of the groups and individuals targeted. On this logic, the breadth of JCE liability is justified if the purpose of the tribunal requires broad constructions of individual criminal liability for group conduct.

Part I of this paper summarizes the elements of JCE liability in the ICTY. Part II describes three similar doctrines in international and domestic law, compares them to JCE liability, and offers an explanation of variations among the elements of each scheme. Finally, Part III considers whether the broad scope of JCE liability can be justified in light of the conduct targeted by the ICTY.

I. JOINT CRIMINAL ENTERPRISE LIABILITY IN THE ICTY

A. Introduction

The JCE doctrine is not explicitly recognized in the Statute of the ICTY (ICTY Statute) (9) or in its Rules of Procedure and Evidence. (10) In fact, the plain language of the ICTY Statute could be construed to limit the liability of an individual defendant to his own actions: As article 7 provides, persons "who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of [grave breaches of the Geneva Conventions of 1949, war crimes, genocide, and crimes against humanity] shall be individually responsible for the crime." (11)

Despite this language of individual liability, the Appeals Chamber has held that "joint criminal enterprise was provided for in the Statute of the Tribunal and ... existed under customary international law [at the time of the Yugoslav conflict]." (12) The Appeals Chamber has ruled that the plain language of the ICTY statute is not dispositive because it "is not and does not purport to be ... a meticulously detailed code providing explicitly for every possible scenario and every solution thereto. It sets out in somewhat general terms the jurisdictional framework within which the Tribunal has been mandated to operate. …

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