Lecture delivered by attorney Nathan Dershowitz at the International Symposium on Srebrenica and ICTY at the Russian Academy of Sciences in Moscow in April 2009.
The longstanding principle of nullum crimen sine lege — holding that a person should not be held criminally responsible for conduct that was not criminal at the time of the action — requires that ICTY should only apply rules of international humanitarian law which are, beyond any doubt, part of customary international law. There are grave doubts, as reflected by the substantial divide in the academic community over this issue, that the Joint Criminal Enterprise (“JCE”) concept is part of customary international law.
ICTY Article 7(1) lists five distinct modes of criminal liability. It does not authorize JCE as a basis for criminal liability. The Tribunal is not a legislative body, empowered to create crimes; rather, it is bound by those crimes already defined by the U.N. Security Council.
The Tribunal has been careful to say that JCE is not the creation of a new crime, but simply the articulation of a principle of criminal liability under the word “committed” in the statute. Functionally, however, it is plainly a new crime, similar to conspiracy, the American concept of RICO and the Rome Statute — each statutorily authorized crimes or bases for criminal liability. The ICTY application of JCE, however, is criminal liability in the absence of any statutory basis.
In practice, JCE operates much like a conglomeration of the five individual modes of liability listed in the Statute, which ICTY prosecutors and judges then read expansively to permit an aggregation of the cumulative evidence against an accused to find him guilty of some generalized crime, without the statutorily required proof that the accused planned, instigated, ordered, committed or otherwise aided and abetted any specific crime. The formulation of the JCE concept has thus been developed by ICTY judges in the decisions they have rendered, rather than by statute.
The Tadić Appeals Chamber, which first described a theory of JCE liability, insisted that JCE was based upon customary international law, described by the World War II tribunals. It claimed to have examined several relevant precedents, from which it elucidated the theory of JCE, including its three separate forms each with distinct actus reus and mens rea. However, a review of that precedent by leading academic scholars reveals that the Tadić Chamber took wide latitude in its interpretation, repeatedly and unsoundly inferring the bases for liability from isolated statements by the prosecutors, when a clear judicial statement was unavailable.
Since then, JCE has evolved into three primary forms, one of which was described in the Krajišnik Trial Judgment as existing where:
all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role within it), they … all possess the intent to kill.
The decision goes on to say the objective and subjective prerequisites for imputing criminal responsibility to a participant who did not, or cannot be proven to have, effected the killing are as follows:
(i) the accused must voluntarily participate in one aspect of the common design (for instance, by inflicting non-fatal violence upon the victim, or by providing material assistance to or facilitating the activities of his co-perpetrators); and
(ii) the accused, even if not personally effecting the killing, must nevertheless intend this result.
Kraji{nik shows how amorphous the JCE concept has become. Mr. Krajišnik was a strong, vocal advocate for protecting Serbian interests and sought to avoid Serbia becoming a powerless minority within a separate country of Bosnia-Herzegovina — indeed, he was a principal negotiator seeking to establish that position. Mr. Krajišnik did not personally commit any war crimes; instead, he was ultimately convicted for acts which are accurately characterized as political speech and political activity — that is, an actus reus based completely on human rights-protected conduct.
By failing to recognize the protected nature of political speech, the ICTY Tribunal thus concluded that Mr. Krajišnik’s performance of an act which advanced the share JCE goal (even if legitimate) rendered him guilty of participating in a JCE; a radical departure from what in the past was viewed as participating in war crimes. The implications for international law are extraordinary, given that JCE liability illegitimately extends the scope of criminal liability for high-level government officials far beyond that contemplated by the Statute’s drafters. At a minimum, whether such principles constitute previously established law or customs of law is seriously debatable.
This new effort by ICTY to apply JCE to find individual criminal liability where the Statue does not provide any drastically undermines the credibility of ICTY as a valid tribunal, leaving it open to charges of merely representing victors’ justice and of bias.
FULL TEXT OF LECTURE:
Nathan Dershowitz – The doctrine of Joint Criminal Enterprise in the jurisprudence of ICTY