The doctrine of Joint Criminal Enterprise in the legal framework of Bosnia and Herzegovina

Is it necessary for adjudication of war crime cases?

Thesis (M.A.), 2015

92 Pages, Grade: A+


Table of Contents

Table of Contents






1. Development of the Concept of Joint Criminal Enterprise
1.1 Common Law and Joint Criminal Enterprise
1.2 The Notion of Customary International Law

2. Principle of Legality
2.1 History and legal findings
2.2 The Principle of Legality and Joint Criminal Enterprise

3. Application of Joint Criminal Enterprise before other International Tribunals
3.1 Special Court of Sierra Leone and application of Joint Criminal Enterprise
3.2 Joint Criminal Enterprise and Extraordinary Chambers in the Courts of Cambodia
3.3 The International Criminal Court and Joint Criminal Enterprise
3.4 International Criminal Tribunal for the former Yugoslavia and Joint Criminal Enterprise


4. Does Bosnia and Herzegovina need the Doctrine of Joint Criminal Enterprise?
4.1 The Court of Bosnia and Herzegovina and Application of the Doctrine of Joint Criminal Enterprise
4.2 Cases transferred to the State Court pursuant to Rule 11 bis

5. Concluding Remarks

6. Bibliography

7. Table of cases

List of Abbreviations

Abbildung in dieser Leseprobe nicht enthalten


The relatively new doctrine of criminal liability presented through the concept of a Joint Criminal Enterprise (JCE) is a very contradictory one. It has played a crucial role in the allocation of guilt in international criminal tribunals within which it has been developed and has evolved. This theory of individual liability goes to the core of what international criminal trial seeks to achieve: “the attribution and calibration of individual responsibility for mass atrocities.”1 At the same time, the concept of JCE is criticized by some scholars as well as by defence attorneys. It is often characterized as the most complex and most challenging theory in international criminal law. This thesis will analyse how different courts have coped with this new form of criminal liability, with a special focus on attempting to answer whether this form of criminal liability should, could or must be applied in the Court of BiH in comparison with other forms of liability. This thesis is divided into four main parts. The First part will review the origins and development of Joint Criminal Enterprise, common law tenets, the logic of common law and the notion of customary law and the position of JCE in international customary law. Then, the second section proceeds to the development of the concept of a Joint Criminal Enterprise through an overview of key, relevant historical facts. The third part considers the application of the JCE in other international tribunals including the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL) and in the Special Court for Cambodia (Extraordinary Chambers in the Courts of Cambodia - ECCC). In conclusion, there is a discussion on The Court of BiH and application of this form of criminal liability with a targeted analysis of selected cases.


International criminal law began to be integrated into international law following the trials held after World War II. After this period, there were no major developments until the 1990s, when mass atrocities and violations of human rights committed during the violent conflicts in Bosnia and Herzegovina (BiH) and Rwanda brought this issue to the attention of the legal community and broader public. The importance of determining individual responsibility for mass crimes is one of the most crucial questions. In order to begin to address this issue more effectively, the International Criminal Tribunal for the former Yugoslavia (ICTY) established a new doctrine of criminal liability, a concept referred to as Joint Criminal Enterprise (JCE). This form of liability was used to try participants alleged to have participated in common criminal plans. According to the seminal judgment in the Duško Tadić case2 (2000) this form of liability has three forms:

1. Basic or JCE I for participants in a common criminal plan;
2. Systematic or JCE II form for the prosecution of those who participated in the operation of concentration camps; and
3. Extended or JCE III form for perpetrators of foreseeable crimes.

JCE is a very controversial theory of liability; while developed by international criminal tribunals and participants and experts therein, at the same time it has been criticized by scholars and defence attorneys. There are a few common criticisms regarding the use of JCE:

- JCE is not a part of the ICTY Statute, the ICTR Statute or domestic laws;
- JCE is too vague to be a reliable indicator of criminal responsibility;
- JCE that could be applied to small-scale crimes can be expanded and applied to mass crimes, thereby leading to the risk of „guilt by association“3.

When applying this concept, prosecutors must prove that a “group of people had a common plan, design or purpose to commit a crime; that the defendant participated in some way in the plan; that the defendant intended the aim of the common plan; and that the accused significantly contributed to the objective of the enterprise”4. In Joint Criminal Enterprise doctrine the link between enterprise and defendant must be precisely defined. Critics also pose a question which is commonly asked regarding this doctrine – are the individuals guilty for the actions of their co-conspirators or just for their own acts? This is a fundamental question of criminal law theory. The question is how individual criminal prosecution is possible for a crime that has a collective aspect. Collective moral guilt must not be used as a justification to impose criminal liability on all members; however cases against individuals accused of crimes must be pursued.

This thesis explores and analyses whether this mode of liability is necessary in the War Crimes Chambers in Bosnia and Herzegovina, since the origins of Joint Criminal Enterprise are disputable and since there are other forms of liability that may be more applicable in light of domestic legal practice.


As mentioned in the introduction, this liability doctrine has received a great deal of criticism. There are many uncertainties when it comes to this form of liability, including whether the application of this form of liability is a violation of the nulum crimen sine lege principle, and whether the court actually needs this form of liability to render guilty verdicts against defendants.

As JCE has a short history, it is interesting to see how other countries around the world are coping with it in their own courts and tribunals. A natural question is “What was the influence of the Tadić case in different courts?” The primary focus on the Tadić decision is based on the foundation of this liability doctrine in customary law.

If the findings of the ICTY in this decision failed to prove JCE existence in customary international law, how JCE can be used in subsequent cases not just before ICTY but other international or domestic courts as well?

Also, other important questions may be raised concerning the application of JCE with other forms of liability. The core problem elaborated in this thesis is whether the Court of BiH really needs this form of liability to effectively try war crimes cases. Furthermore, the thesis considers how two different law systems (Common law and Civil law) can function in one hybrid court like the War Crimes Chamber in Bosnia and Herzegovina, and how the form of liability that emanates from the Anglo-Saxon system of law has been applied in the traditionally continental system in Bosnia and Herzegovina.

This thesis focuses on the application of JCE before several tribunals (Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and the International Criminal Tribunal for the Former Yugoslavia (ICTY)) and one domestic court (the War Crimes Chamber in Bosnia and Herzegovina) with the goal of emphasizing inconsistencies and challenges when it comes to the application of this doctrine. Selected ground-breaking cases will be examined to support this argument. It is also important to examine one of the main critiques of Joint Criminal Enterprise related to principle of legality and its origins in customary international law. A review of the work of the War Crimes Chamber and the application of the Joint Criminal Enterprise can provide some answers on the application of this form of liability in Bosnia and Herzegovina. This also provides an opportunity to analyse how JCE was used before domestic courts in the light of other modes of liability, the principle of legality and the relation between custom law and continental law.

Through comparative analysis this thesis aims to demonstrate that this form of liability would be better avoided in domestic courts in Bosnia and Herzegovina.


The methodology used in this thesis is based on comparative analysis and qualitative research of the legality of the application of JCE, in order to critically address the necessity and relevance of this doctrine in the jurisprudence of BiH. This involves a review of the relevant academic literature, as well as document analysis and extensive examination of international criminal tribunal cases as well as cases adjudicated before the War Crimes Chamber in Bosnia and Herzegovina. The most relevant cases were selected and subjected to detailed scrutiny. The aim is to show how different courts are implementing this new form of criminal liability with a special emphasis on the relevance to the War Crimes Chamber in Bosnia and Herzegovina. This is also important from the aspect of the potential collision of common law and civil law legal traditions, since JCE is considered to originate from the Anglo-Saxon system of law, while Bosnia and Herzegovina traditionally adhered to the continental law system. JCE is often criticized for violating one of the most important principles of criminal law – nullum crimen, nulla poena sine lege - and therefore one part of the thesis is dedicated to this issue.

The introductory section contains a short explanation and interpretation of JCE and the main criticisms of this form of liability. It then proceeds with a description of the historical background and development of the concept of Joint Criminal Enterprise. This is followed by an analysis of the principle of legality and Joint Criminal Enterprise, and the question of the existence of Joint Criminal Enterprise in customary international law. Then it proceeds with the application of this doctrine before the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC) and the International Criminal Tribunal for the Former Yugoslavia. The last section is focused on the application of JCE before the War Crimes Chamber in Bosnia and Herzegovina.


1. Development of the Concept of Joint Criminal Enterprise

In this section, the historical background of the concept of Joint Criminal Enterprise will be explained, together with an overview of the seminal decision of the ICTY in the Tadić case by which this new form of criminal liability was introduced. The second part of this chapter will be dedicated to an explanation of common law tenets, the logic of common law and its basic incompatibilities with the continental system of criminal procedure and law, since Joint Criminal Enterprise has its roots in the Anglo Saxon system of law but is now applied around the world in different legal traditions and systems. In addition this part will offer an examination of notions of customary law since the main debate about JCE is whether this form of liability is part of customary international law or not. Also, the question of the existence of Joint Criminal Enterprise in customary international law will be examined.

The traces of Joint Criminal Enterprise can be found in the post-World War II era. The doctrine of Joint Criminal Enterprise was not explicitly part of the London Charter5. According to this Charter, International Military Court was established for the prosecution of war criminals „whose offences have no particular geographic locations”6, but it does include reference to membership liability, conspiracy and common design or common plan criminal liability (Article 6(a) of Nuremberg Charter)7 that are, according to some scholars, the essence of JCE. This doctrine of criminal liability had been used under different names, for example, common purpose, common criminal purpose, common plan, common design, common criminal design, common concerted design, common enterprise, acting in concert and Joint Criminal Enterprise.

The task of establishing a post-war justice system in Europe was given to Lieutenant Colonel Murray C. Bernays.8. Colonel Bernays was an American Jew who was actively involved in the investigation of Nazi crimes against United States servicemen. He had to deal with two difficult issues. The first issue was how to bring to justice crimes committed against German nationals (especially German Jews) by their own state in the pre-war time of peace; this was out of the scope of international humanitarian law at the time. The second question was as challenging as the first one: how to bring to justice the millions of Germans who were members of the Nazi party, Gestapo, SS and other criminal organizations that were very active during the war. To solve this problem he leaned on Anglo - American conspiracy law.9 His opinion was that all the above-mentioned Nazi organizations should be indicted for conspiracy.10 According to Bernays' plan, these organizations would be tried at the Nuremberg Tribunal, and judges would determine whether an organization is criminal or not. Once these organizations were criminally convicted, individual defendants, mostly leading Nazi war criminals, would then have to defend themselves before military courts, from the charge of membership in them, and they would be unable to deny the already-established criminal purpose of the organization.11 He was of the opinion that this category of war criminals should be charged with conspiracy to commit crime.

Two doctrines may be recognized as central to the origin of the Joint Criminal Enterprise doctrine: conspiracy and membership in a criminal organization. The conspiracy doctrine was used against the major war criminals (who were the creators of the common plan or conspiracy12 ), while the second doctrine was focused more on defendants (mostly the individual perpetrators in the common plan) who were not occupying higher positions in Nazi organizations;13 those who were “just following orders.” He argued that the two doctrines were necessary to deal with the huge numbers of people involved in criminal activity:

"There will be many of thousands of war criminals who should be tried for crimes committed all over Europe... Some offenders are guilty as principals, some as accessories. In many cases it will be difficult to establish the individual's identity or to connect him with the particular act charged. Witnesses will be dead and scattered, and the gathering of proof will be laborious and costly. The offenders will become subject to trial under many and divergent codes and procedures... The paper work will be enormous, the liaison and coordination singularly difficult...

It will never be possible to catch and convict every Axis war criminal... under the old concepts and procedures. Even if this could be done it would not, of itself, be enough. The ultimate offence, for example, in the case of Lidice (the village in Czech Republic destroyed during the WWII by German forces), is not alone the obliteration of the village, but even more, the assertion of the right to do it... Behind each Axis criminal, however, lies the basic criminal instigation that must be established, for only thus will the conviction and punishment of the individuals concerned achieve their true moral and juristic significance. In turn, this approach throws light on the nature of the individual's guilt, which is not dependent on the commission of specific criminal acts, but follows inevitably from the mere fact of voluntary membership in organization devised solely to commit such acts."14

Bernays' plan was criticized by the American administration, and caused a legal debate between the Allied Powers (the French and the Soviets were strongly against the doctrine of conspiracy as this was not a part of their legal tradition). The American stance had in fact begun to change after the killing of 80 American prisoners in Belgium,15 after which many American officials started to think that the Germans really were acting in a conspiracy.16 A final memorandum, based mostly on Bernays’ plan, was presented to President Roosevelt, and was finally accepted by President Harry Truman.17 “[The] conspiracy concept was replaced with the joint participation in a criminal enterprise.”18

In order to understand this decision it is important to know the difference between conspiracy and Joint Criminal Enterprise. The essence of the crime of conspiracy is the agreement. In a JCE, the person involved in commission of the crime is liable for crimes that are a natural and foreseeable consequence of the criminal enterprise. “However, even the doctrine of complicity limits liability to criminal acts done in furtherance of the conspiracy, which are dependent upon the encouragement and material support of the group as a whole, in order to treat each member of the conspiracy as a causal agent or accomplice of the criminal act. Joint criminal enterprise on the other hand extends liability from the common plan to all the acts committed by a member of the group that are ‘a natural and foreseeable consequence of participation in the common plan,’ regardless of whether these consequences further the object of the common plan. In a sense it places responsibility for all ‘collateral damage’ that may result as a consequence of reckless execution of the common plan upon the entire membership involved in effectuating it.”19

When it comes to the implementation of the Bernays’ plan concerning criminal organizational liability, the judges of the International Military Tribunal established three things that prosecutors must prove in order for an organization to be judged as criminal:20 1) the burden of proof, rather than resting on the shoulders of the accused, was shifted to prosecutors who were responsible for proving that the accused joined the organization voluntarily; 2) the accused had knowledge of the organization’s criminal purpose; and 3) that activities of the organizations were proven connected with one of the crimes within the scope of London Charter.

Traces of Joint Criminal Enterprise can also be found in the International Military Tribunal for the Far East (or Tokyo Tribunal),21 even though it was not explicitly stated in the tribunal Statute. The concept of conspiracy presented in the opening statement of Joseph B. Keenan, the Chief Prosecutor, was attacked by defence attorneys as dubious and not part of international law. The Court majority decided that conspiracy is a part of international law, and therefore reinforced this concept. All of the accused standing before the Tokyo Tribunal were found guilty of complicity in the alleged conspiracy. The judgment stated, "We have come to the conclusion that the charge of conspiracy to wage aggressive wars has been made out (and) that these acts are... criminal in the highest degree."22

When it comes to the modern development of the JCE, the doctrine of Joint Criminal Enterprise was first introduced in the International Criminal Court for the former Yugoslavia (ICTY)23 by the Appeals Chamber in the Tadić case in 1999 even though this doctrine was not explicitly mentioned in the statute of the Tribunal. This was the first case of the Joint Criminal Enterprise being invoked in a case regarding the war in Bosnia and Herzegovina. Duško Tadić himself was a low-level participant in the crimes. He was the local party leader of the Serbian Democratic Party (SDS) in Prijedor, and helped the Army of the Republika Srpska (VRS) to take control of the region in 1992, and was actively involved in the expulsion, arrest and detention of Muslim leaders who were than mistreated. During these operations, many civilians were beaten, robbed and killed, and many were taken to the detention camps in Omarska, Trnopolje and Keraterm24. He was charged for the murder of five Muslim men in the village of Jaškići, convicted on war crimes, crimes against humanity, but acquitted of perpetrating crimes against humanity. The Trial Chamber found that it could not, "on the evidence before it, be satisfied beyond reasonable doubt that the accused had any part in the killing of the five men."25 The prosecutor appealed Tadić’s acquittal based on error related to the application of the common purpose doctrine.26 The Appeals Chamber concluded: “the only reasonable conclusion the Trial Chamber could have drawn is that the armed group to which [Tadić] belonged killed the five men.“27 The Appeals Chamber reviewed Article 7(1) and found that “the crimes within the jurisdiction of the Tribunal might also occur through participation in the realisation of a common design or purpose.“28 He was then accused based on extended form of JCE, sentenced to 20 years imprisonment.

The contribution to the development of the JCE doctrine was a result of the Appeals Chamber ruling that the notion of criminal purpose includes three categories. According to the Appeals Chamber, in cases following World War II, members of a group are criminally liable for any act of any member of common criminal purpose. “Close scrutiny of the relevant case law shows that broadly speaking the notion of common purpose encompasses three distinct categories of collective criminality”.29 These three categories are explained below:

JCE I or Basic JCE: Perpetrators act pursuant to a common design and share the same criminal intention. Actus reus (criminal act or omission) and mens rea (criminal intent) are that, "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 the accused, even if not personally effecting the killing, must nevertheless intend this result."30 To prove the existence of JCE I as a part of customary law (in order to avoid nullum crimen sine lege principle violation) the ICTY referred to the Geirg Otto Sandrock et al. case, known as the Almelo Trial,31 in which three Germans were found guilty under the doctrine of “common purpose.” The British Court found that they all had had the intention to kill the British soldier, and in spite of the fact that each of them played a different role, they were co-perpetrators. Another case cited by the ICTY was Gustav Alfred Jepsen,32 and others. The Jepsen case is related to the killing of 80 prisoners of war during their transit to another concentration camp to Nuengamme in advance of the approach of the Allied forces. While most of the prisoners of war died as a result of bombardment by the British Royal Air Force on Luneburg, 80 of them survived only to be later killed by the three accused - Jepsen, who was a member of the Waffen SS, Freitag, who was a head of the local Gestapo, and Muller who was a police commander. They were charged, "in that they at Luneburg and elsewhere (...) in violation of the laws and usages of war were concerned in the ill-treatment and killing of Allied nationals, internees of concentration camp, during a train journey"33 The prosecutor stated, "If Jepsen was joining in this voluntary slaughter of eighty or so people, helping the others by doing his share of killing, the whole eighty odd deaths can be laid at his door and at the door of any single man who was in any way assisting in that act."34 The last two were found not guilty of the charge while Jepsen was found guilty and sentenced to life imprisonment.

This concept of common purpose used in the Jepsen trial was extended in the Schonfeld case in which ten German soldiers were charged with committing war crimes by killing a member of the Royal Air force, a member of the Royal Canadian Air Force and a member of the Royal Australian Air Force. They were all killed while unarmed and hiding. In this case, the Judge Advocate stated: “If several persons combine for an unlawful purpose or for a lawful purpose to be effected by unlawful means, and one of them, in carrying out the purpose, kills a man, it is murder in all who are present, whether they actually aid or abet or not, provided that the death was caused by a member of the party in the course of his endeavours to effect the common object of the assembly.”35 This case was also ultimately cited in the Tadić case.

When it comes to the first category of JCE, common enterprise, there is another case that is important to mention. In the United States of America v Otto Ohlendorf et al, or the Einsatzgruppen case, 24 of the accused were charged with criminal conduct emanating from their positions as members of Einsatzgruppen or Special Task forces. This was one of the 12 trials held by United States Government subsequent to the Nuremberg trials (called the "Subsequent Nuremberg Trials"). These trials were also held in Nuremberg. The Einsatzgruppen were formed in 1941 through an initiative of Adolf Hitler and Heinrich Himmler, and organized by Reinhardt Heydrich. The Prosecution stated that the main purpose of the Einsatzgruppen was to operate behind front lines in occupied territory in the East (Groups A operated in Estonia, Lithuania and Latvia; Group B operated around Moscow; Group C and D in Ukraine and the Caucasus area) and to exterminate Jews, Soviet officials, gypsies and individuals from the broader civilian population who were considered "racially inferior" or "politically undesirable". This group was charged with the death of one million human beings who were the victims of this common plan. “...The basic principle is that neither according to Act no. 10 of the Control Council,36 nor according to any known system of criminal law is guilt of murder limited to the man who pulls the trigger or buries the body. In line with the recognized principles which are common to all civilized legal systems, paragraph 2 of Article II of Act no. 10 of the Control Council regulates several forms of relationships with crimes, which are sufficient to establish guilt. Therefore, not only the main perpetrators are guilty, but also participants, those who participate with assent in the commission of a crime or who are linked to the plans and enterprises related to the commission, or those who order to support crime and those who belong to an organization or group included in the commission of the crime. These provisions do not embody any draconian or new principles of criminal responsibility.”37

All 24 defendants were found guilty. "The ICTY Appeals Chamber noted that other post-World War II trials held in other countries, in particular Italy and Germany, used the same theory of liability but used the theory of co-perpetration instead of common purpose or common design."38 This has shown that JCE is coming from common law system and that is applied just before the courts of the countries that belong to that system of law.

JCE II or systematic JCE is related to the existence of a system of ill treatment. It is not necessary to prove formal or informal agreement in participation, but to show the adherence to a system of repression, knowledge of the system and the intent of the accused to be a part of this system. According to the ICTY findings in the Tadić case the origin of the JCE II form of liability can also be found in trials after World War II, related to concentration camp cases in which offenses were committed by, “members of military or administrative units such as those running concentration camps; i.e. by groups of persons acting pursuant to a concerted plan."39

To illustrate this form of liability it is important to mention two important cases that were cited by ICTY prosecutors in the Tadić case. The first is the Dachau Concentration Camp40 case (Trial of Martin Gottfried Weiss and thirty-nine others) in which workers and officials of the camp were charged with participation in a common design to mistreat the prisoners, including beatings, starvation, torture, abuse and killings, and hence committed war crimes. Dachau was the first concentration camp in Germany, established in 193341. The charges covered the period January 1942 to April 1945. "In order to establish a case against each accused the prosecution had to show (1) that there was a system in place to mistreat the prisoners and commit the crimes, (2) that each accused was aware of the system, and (3) that each accused, by his conduct, “encouraged, aided and abetted or participated ” in enforcing this system."42 All of the accused were found guilty.

The second case referenced by the ICTY Appeals Chamber in the Tadić case is the Bergen-Belsen43 case (Trial of Josef Kramer and 44 others). The official charge was related to war crimes committed in Bergen-Belsen and Auschwitz. The charge was as follows:

"At Bergen-Belsen, Germany, between 1st October, 1942, and 30th April, 1945, when members of the staff of Bergen-Belsen Concentration Camp responsible for the well-being of the persons interned there, in violation of the law and usages of war, were together concerned as parties to the ill-treatment of certain of such persons, causing the deaths... Allied nationals, and other Allied nationals whose names are unknown, and physical suffering to other persons interned there."44

The trial lasted for 54 days. The Court sentenced 11 of the accused to death, another group of 18 defendants to prison sentences of one to fifteen years, one to life in prison while 14 were acquitted. This second category of JCE is a variant of JCE I. The difference is related to the position of an accused that was in, "[a] position of authority with the power to look after the inmates and make their life satisfactory"45 but they failed to do so. The actus reus in JCE II can be seen as an, "active participation in the enforcement of a system of repression, as it could be inferred from the position of authority and the specific functions held by each accused. The mens rea element comprised: (i) knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat inmates."46

Joint Criminal Enterprise III: According to the decision in the Tadić case the origin of JCE III can also be found in post-World War II cases- in particular the Essen Lynching and Borkum Island cases - described below. In the Tadić case, prosecutors stated that JCE III is part of customary law. However, many scholars argue that this is not a case and that this form of JCE is invented.

In the Tadić case the Appeals Chamber gave an explanation of this form of JCE by noting the existence of a common and shared intention to commit ethnic cleansing by forceful removal of people belonging to a certain ethnicity. JCE III or the Extended form of JCE is related to acts that fall outside the common plan. The defendant may be found guilty of those acts “if such acts are a natural and foreseeable consequence of the effecting of that common purpose.“47 If during the population removal process someone has been killed, then "criminal responsibility may be imputed to all participants within the common enterprise when the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk."48

The ICTY prosecutors referenced two cases to provide historical background for the JCE III, Essen Lynching case49 and the Borkum50 Island case. The Essen Lynching case concerned three British prisoners of war who were lynched by 7 Germans, out of whom 2 were German soldiers (one captain and private) and 5 civilians. Prisoners of war (POWs) were transported to a Luftwaffe unit for interrogation. The German officer, Captain Heyer, had ordered that the soldier should not interfere if civilians started attacking British soldiers. The United Nations War Crimes Commission in its report stated that: "When the prisoners of war were marched through one of the main streets of Essen, the crowd around grew bigger, started hitting them and throwing sticks and stones at them. An unknown German corporal actually fired a revolver at one of the airman and wounded him in the head. When they reached the bridge, the airmen were eventually thrown over the parapet of the bridge; one of the airmen was killed by the fall; the others were not dead when they landed, but were killed by shots from the bridge and by members of the crowd who beat and kicked them to death."51

The prosecution in this case argued that it was not possible to distinguish between one aggressive action from another and so "each and every one of the accused ... was concerned in the killing of three unidentified airman..."52 "...every person in that crowd who struck a blow is both morally and criminally responsible for the deaths of those three men."53 Captain Heyer, together with the soldier escorting the airmen and three civilians were found guilty, "because every one of them had in one form or another taken part in the ill-treatment which eventually led to the death of the victims, though against none of the accused had it been exactly proved that they had individually shot nor given the blows which caused the death."54 The Essen Lynching case demonstrates the closest link to a doctrine of Joint Criminal Enterprise due to the fact that multiple offenders tried to achieve a common purpose - to kill prisoners of war. Seven persons were charged and five of them were found guilty of murder and/or ill treatment which led to the death of the victims. It was not proved that any one of the accused had individually shot or delivered the blows which caused the death.

The Borkum Island or United States v Kurt Goebell et al. case is also relevant. An American aircraft crash-landed on the island of Borkum on August 4, 1944 controlled by Germans. The seven airmen were captured and marched through the city. They were beaten by members of the Reich's Labour Corps upon the order of the Reichsarbeitsdienst, and then struck by civilians on the street. Later, while passing on another street, the mayor of Borkum urged the citizens to kill them like dogs55. They were beaten again by civilians while the escort guards did not protect them but instead took part in the beatings. After that, one of the airmen was killed by a German soldier, and they were all ultimately shot by German soldiers. All the accused were charged with "wilfully, deliberately and wrongfully encourag(ing), aid(ing) and abett(ing) and participat(ing) in assaults upon,"56 and the killing of, the prisoners.

This trial is of a great importance because the Prosecutor in his opening statement developed the doctrine of common design. He stated the following: "[I]t is important, as I see it, (sic) to determine the guilt of each of these accused in the light of the particular role that each one played. They did not all participate in exactly the same manner. Members of mobs seldom do. One will undertake one special or particular action and another will perform another particular action. It is the composite of the actions of all that results in the commission of the crime. Now, all legal authorities agree that where a common design of a mob exists and the mob has carried out its purpose, then no distinction can be drawn between the finger man and the trigger man (sic). No distinction is drawn between the one who, by his acts, caused the victims to be subjected to the pleasure of the mob or the one who incited the mob, or the ones who dealt the fatal blows. This rule of law and common sense must, of necessity, be so. Otherwise, many of the true instigators of crime would never be punished. Who can tell which particular act was the most responsible for the final shooting of these flyers? Can it not be truly said that any one of the acts of any one of these accused may have been the very act that produced the ultimate result? Although the ultimate act might have been something in which the former actor did not directly participate [, e]very time a member of a mob takes any action that is inclined to encourage, that is inclined to give heart to someone else who is present, to participate, then that person has lent his aid to the accomplishment of the final result."57

Problematic about citing these two cases as a foundation for the Extended form of JCE is the fact that there was no written decision from the judges so there is no legal background of the decision or no legal reasoning.58 Also, there is no formal perpetrator’s agreement on a common plan.

Prosecutors relying on this doctrine argue that there is no distinction between those who exposed the victims to such violence, those who initiated the violence, and those who incited the violence and the one who shot and killed the victims. The Prosecutor stated that if it were proved beyond reasonable doubt “that each one of these accused played his part in mob violence which led to the unlawful killing of the seven American flyers (...) under the law each and every one of the accused (was) guilty of murder."59 The court upheld the common design doctrine by finding some of the accused guilty for the killing and assault, while others were found guilty of just assault.

The ICTY Appeals Chamber found that Tadić had participated in a common plan and that the killing was foreseeable. He was then convicted of the murder and was sentenced to 20 years imprisonment. It is interesting that JCE doctrine contributed to a guilty verdict for Tadić guilty at the Appeal, though he had not been found guilty at the First Instance trial.

The ICTY Appeals Chamber in the Tadić case relied on 10 cases in the post-World War II trials to prove the existence of a Joint Criminal Enterprise. When it comes to the JCE I category in which the existence of common criminal purpose must be proved, the relevant cases are: Otto Sandrock and three others; Hoelzer and other; Gustav Alfred Jepsen and others; Franz Schonfeld and others; Feurstein and others; and Otto Ohlenforf and others. In the JCE II or concentration camp cases, the relevant trials were Martin Gottfied Weiss and thirty-nine others, and Josef Kramer and forty-four others. For the JCE III, the Appeals Chamber relied on Essen Lynching and Borkum Island Case.

Based on all of these trials, the Appeals Chamber in the Tadić case, the Court, from their perspective, has proved the existence of a doctrine of common design in customary international law. After this case, JCE has become increasingly important at the ICTY. "The first indictment to rely explicitly on JCE was confirmed on June 25, 2001- eight years into the ICTY's work. Of the forty-two indictments filed between that date and January 1, 2004, twenty-seven (64%) rely explicitly on JCE."60 This percentage is even higher (81%) if we take into account the cases that were related to indictment which do not refer directly to JCE but to "act in concert" situations in which accused persons can be convicted on a JCE theory.61

The below summary shows the three categories of JCE recognized by ICTY, noting its mens rea and actus reus elements.

Basic JCE – JCE I

Mens rea: Intent to perpetrate a certain crime (shared intent).

Actus reus:

a) Plurality of persons who need not to be organized in a military, political or administrative structure.
b) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the ICTY Statute.
c) Participation of the accused in the common design involving the perpetration of one of the crimes provided or in the ICTY Statute. Participation does not mean to commit certain crime but can be assistance or contribution to the execution of common plan.

Systematic JCE - JCE II

Mens rea:

a) Personal knowledge of the system of ill- treatment.
b) Intent to further this common system of ill-treatment.

Actus reus: Same as for JCE I.

Extended form of JCE – JCE III

Mens rea:

a) Intention to participate in and further the criminal plan and to contribute to the JCE.
b) Responsibility for crimes falling outside the common plan arises if it was natural and foreseeable that criminal acts are likely to happen by other participants and that accused, despite of that took that risk.

Actus reus: Same as for JCE I.

According to the findings of the Tadić case, the Court has claimed that Joint Criminal Enterprise has its roots in customary international law. Three forms of Joint Criminal Enterprise were introduced. In brief and to conclude, JCE I allows that any individual may be found guilty based on their involvement in a common plan regardless of their level of participation. For the second category of JCE, only knowledge of ill-treatment and intended support of others committing a crime is sufficient to find the accused guilty. For the third or extended form of Joint Criminal Enterprise, the accused can be held liable for knowing that crime might occur as a natural and foreseeable consequence of the plan, and yet that accused participated in the execution of the plan anyway.

1.1 Common Law and Joint Criminal Enterprise

The second part of this chapter will explain basic tenets of common law, the logic of common law, and its basic incompatibilities with the continental system of criminal procedure. This is important since Joint Criminal Enterprise has its roots in the Anglo-Saxon system of law but is now applied around the world and in different legal traditions and systems.

“The common law, Teutonic in origin, was developed by the English courts from the thirteenth to the nineteenth centuries, and has spread over the world with the English race.”62 This system exists in England and in United States of America63 and in former British colonies like South Africa, Singapore, India, Ghana, Cameroon, Canada, Pakistan, Ireland, Hong Kong, New Zealand, and Australia. The whole history of common law may be “treated if conveniently under five heads: (1) English law before the Conquest, (2) the development of the common law, (3) the development of equity (4) the law merchant, (5) the reform-movement”.64 English Common Law emerged during the Middle Ages. After the Norman Conquest in 1066, medieval kings imposed a new legal system of writs or royal orders.65 The King’s court represented the common custom of the realm (not of manorial courts), and started to handle matters which previously had been handled by local courts. This was a period of standardisation of the law. By 1250, the same system of law was introduced and applied throughout the whole country. In addition, juries were also introduced in order to include local people in the adjudication process. This was seen as a strategy to divert occupied people of rebellion.66 By the end of the Middle Ages, the King’s Courts were the only courts in England. During that time, to bring a matter before the court a special request had to be made to the Chancellor who had to deliver a writ to the court. Since people were unsatisfied with the system of writs they started to appeal directly to the King. All such appeals were delegated to the Chancellor’s Court of Chancery or the Court of Equity, whose decision contributed to the development of the doctrine of equitable principles. This marked the beginning of the dual structure of legal rules and equitable principles that has been maintained to this day. During the Tudor period, Chancellor’s courts became very strong, but with the time and through the effort of common law lawyers, the power of both courts was equalized. In the 19th century those two courts were fused into one court that managed both the law and equity.

Unlike civil law, common law is mostly uncodified, meaning that there is no comprehensive compilation of laws. It is based on precedents or principle Stare Decisis according to which earlier judicial decisions made in a similar case and usually decided by the higher courts, should be followed in subsequent cases. Precedents have a binding nature unlike in civil law countries in which case law is not considered to have binding force. In civil law countries courts are just interpreting laws while in common law systems they are the main creators of law. Statutes are considered to be a supplementary source of law, but, nevertheless, judges are obliged to apply it and interpret it as the judges in civil law system. All judicial decisions are documented in compilations of case law. In the common law system judges have the most important role in shaping law. As stated above, common law was created by and through judges, and as is often stated, was more creative and flexible than civil law systems. The unsystematic nature of common law has come under criticism by civil law lawyers. Statutes and laws are considered to be subsidiary sources of law. And unlike in monist civil law countries, international law in a common law country is applicable only when it is integrated into domestic laws.

This next section will consider some differences in criminal process. In common law countries, investigations are conducted by the police, who are authorized to interview suspects, victims and witnesses. Additionally, in extreme situations they can arrest criminals immediately, while in some situations they need to have a warrant from a judge. Warrants are also needed in situations when an investigation requires wiretapping, surveillance or other such measures. All collected evidence is submitted to the prosecutor who then prepares the indictment and presents it to the court for confirmation. The evidence is available to the defence. After the confirmation of the indictment, the trial begins. During the trial, the central role belongs to the prosecutor and the defence counsel who are fighting to put forward their case; for this reasons the process is often referred to as an adversarial system. Trials in common law systems last much longer then in civil law systems due to the fact that each side has a right to examine their own witnesses and also to cross-examine witnesses, but also because of the fact that the basic fact of law must be pleaded. In civil law countries, there is no need to prove the law suitable for their cases, since the system is based on the principle “jura novit curia”.67 During the trial in common law system, the judge is acting as an impartial referee, unlike in civil law countries, where the judge has a central role and he or she is questioning witnesses and has a role to establish material truth. For this reason, civil law procedure is referred to as inquisitorial. When it comes to witness statements, in common law the main emphasis is on the oral evidence derived through the examination and cross-examination of witnesses. In civil law, written evidence prevails. Another important difference is the fact that witnesses can be prepared for a hearing in common law, while in civil law systems this is strictly forbidden. Also, in common law systems a jury will decide on the guilt of the accused, though the judge’s role is to give instruction to the members of a jury regarding law issues, and to ensure trial procedures are properly followed. It is important to emphasize another important difference related to the practice and process of plea-bargaining. This is a process of negotiation between a criminal defendant and prosecutor with regard to the admission of guilt. “Negotiations ensue about whether the prosecutor will ask the judge for a reduced sentence in exchange for the accused admitting guilt. Alternatively, the prosecutor could offer to prosecute the crime based on a lesser charge (e.g., manslaughter instead of murder) that would carry a lesser sentence .68 Plea-bargaining is just one of the elements that were introduced in the BiH legal system during post-war judicial reform processes. Therefore, as a hybrid tribunal, the War Crimes Chamber combines elements coming from both common and civil law systems. Additional changes are related to the revised role of the prosecutor and investigative judge related to shifting the responsibility of leading the case to the prosecutor instead of the investigative judge. Another element that was embedded is cross examination of witnesses. Therefore, a new form of adversarial system that was unknown to the Bosnian legal system was introduced. Detailed examination of the work of WCC will be conducted in detail in the last chapter of the Thesis. As it is stated at the page 31 of the Thesis, concept of acting in common design or common enterprise derived from English criminal law and is typical for the Common law system. In Bosnia and Herzegovina this new form of liability was introduced through article 180 of CC BiH by which article 7 of the ICTY statute has become a part of domestic legislation. Detailed explanation of the application of JCE before the Court of BiH follows in Part II of the Thesis.

1.2 The Notion of Customary International Law

In this part the notion of customary international law will be introduced. This introduction will serve as a good foundation to examine the existence of JCE in international customary law in Chapter 2 of the Thesis.

In determining the applicable law in a domestic legal order, one must look in Primary legislation such as the Acts of Parliament, or case law in the case of English law, or in the Constitution, laws, bylaws or international agreements when it comes to state using the continental legal system. Therefore, the process of finding applicable law in a domestic legal system is quite straightforward. It is a totally different case when speaking about the sources of international law. “The lack of legislature, executive and structure of courts within international law has been noted...There is no single body able to create laws internationally binding upon everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. One is therefore faced with the problem of discovering where the law is...”69

Customary international law represents one of the sources of international criminal law, together with international conventions establishing rules expressly recognized by the contesting States, general principles of law recognized by civilized nations, and in the end, judicial decisions and the teachings of the most qualified publicists as subsidiary sources.70

In general the creation of customs in international law must be followed by two important elements. The International Court of Justice (ICJ) in the Continental Shelf Case stated that, “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States“.71 Firstly, customs emanates from state practice. Several things must be kept in mind when determining whether certain practices constitute custom. A practice has to have a certain duration, consistency, repetition and generality.72 The second element is the belief that such behaviour is law, “or the belief by a state that behaved in a certain way that it was under a legal obligation to act that way” (opinio juris sive necessitatis).73 Opinio juris of states is something that is the most important prerequisite in creation of customs, but first there is a need to give an overview of state practice. When it comes to the duration of time needed to constitute practice, rules are not unified among states (time immemorial in the common law system or 30, 40 years in the continental system)74. Also, international law does not require a minimum duration75 but as long as the practice is generally uniform the duration of a practice is not an important factor in the creation of customary rule.76 The Anglo-Norwegian Fisheries Case in its findings states that some degree of uniformity amongst state practices is crucial before some custom arises.

When it comes to state practice, this prerequisite of creation of custom will be examined through the practice of state organs on the international scene, for example in diplomatic relations, the activities of states within international organisations, state claims and acts; of great importance for this analysis are state laws and the decisions of state courts in which international customary law has been applied.77

In order for state practice to become custom, that practice or behaviour must represent an attitude of states that means it is legally obliged to act in a certain way. Requirement of a state to act because it is obliged to do so is expressed in the North Sea Continental Shelf cases (1969), where it was stated that “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis78. So the acts of the state must be a legal duty, not one simply of courtesy, tradition or convenience.

Following this brief overview of the basic prerequisites of customary law it is useful to examine some of the above-mentioned cases that were used to prove the existence of a Joint Criminal Enterprise as a custom in international criminal law. At the beginning it should be emphasized that the Tadić case leaned mostly on cases adjudicated before the Military Courts of the Allies Powers (United States of America, Canada and the United Kingdom), and the national court in Italy. It is crucial for this analysis since there is a need to establish practice and opinio juris based on the application of international law before the domestic courts.

The Almelo case was adjudicated before the British Military Court. The jurisdiction of this Court was established by Royal Warrant, and the accused were tried in accordance with Regulation 8(ii) that regulated the issue of collective responsibility. This Regulation clearly states: "Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group, may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime. In any such case all or any members of any such unit or group may be charged and tried jointly in respect of any such war crime and no application by any of them to be tried separately shall be allowed by the Court”79. The prosecuting officer compared this case with the crime of a gang in which every member of that gang is responsible for the outcome of unlawful act. Additionally important for this analysis is the statement of the Judge Advocate who said that: “If people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law”80.

This concept of acting in common design or common enterprise derived from English criminal law and is typical for the Common law system. Therefore, that was not application of international criminal law before domestic courts as the main prerequisite for the approval of existence of customary international law. This was also confirmed in the appeal judgement in which it is stated that: “It should be noted that in many post-World War II trials held in other countries, courts took the same approach to instances of crimes in which two or more persons participated with a different degree of involvement. However, they did not rely upon the notion of common purpose or common design, preferring to refer instead to the notion of co-perpetration. This applies in particular to Italian and German cases“81.

2. Principle of Legality

2.1 History and legal findings

In addition to reviewing the more or less successful stories concerning the application of JCE in different courts, it is also useful to analyse the most frequently cited critiques of this form of criminal liability. First and foremost, it is the principle of legality or nullum crimen, nulla poena sine lege principle. This principle and its application will be described based on the work of international tribunals and some cases that have been adjudicated before them. It is also seen as “being [the] basis of democratic criminal law”.82 Legality in criminal law is one manifestation of the more general notion of the rule of law in society83.

The principle of legality means that no one should be held liable for an act that was not prescribed by law at the time when that criminal act was committed, and that one cannot be punished if that punishment is not prescribed by law. It is also known as the non-retroactivity principle, or nullum crimen, nulla poena sine praevia. This principle is intended to help citizens to know their limits and the consequences of their actions, as well as to prohibit states from arbitrary decisions. This principle has its roots in the ancient world. It can be found in Roman era jurisprudence (under the rule of Sulla, the principle of non-retroactivity was strictly followed, and after that was accepted in Greece), but was accepted in the period of the Enlightenment as the result of endeavours to limit judicial power. Some find the roots of this principle in the Magna Carta from 1215, which in Article 39 addresses the unlawful prohibition of punishment of free men. From England, this concept was expanded to the colonies and since then has become a part of American constitutional law and the Declaration of Rights from 1774. A second theory is based on the belief that this principle has no connection with England, but that it was accepted during the French revolution as a part of the Declaration of the Rights of Man and Citizens in 1789, and then in German legislation (Bavarian criminal legislation from 1813). This claim is based on the opinion that the word lege is rooted in statute law but not in common law. Inspired by the idea of freedom, liberal ideas recognized and defined the legality principle as a guarantee against potential arbitrariness and inequality of criminal law.84 In this period the Latin maxim, mentioned above, was created by von Feuerbach85 in 1801.. He actually created three key principles as follows: nulla poena sine lege, nulla poena sine crimine, nullum crimen sine poena legali. “Feuerbach’s integration of prevailing political ideology with the criminal law was simple enough: one who violates the liberty guaranteed by the social contract and safeguarded by penal law commits the crime. All future offenders cannot be known in advance and physically coerced; hence, he argued that the essential purpose of punishment must be deterrence by threat, i.e., it must be psychological.”86 However, the establishment of this principle marked an end of arbitrariness and uncertainty in law. This principle has come “ a reaction against the system of absolute discretion in the sphere of legislation and jurisprudence: the discretionary power of the judge to fill up lacunae in the law results in uncertainty as to what the law and what the punishment is, with the further consequence that punishments are unequal, varying according to the social position of the condemned, and often that punishment is inflicted on the innocent... The principle , nullum crimen sine lege, was invoked as a guarantee of civic liberty against the omnipotence and despotism of the State and of the judge.”87 This is the basic principle of contemporary criminal law, and it is significant for individuals (as noted above it protects them from the arbitrary decisions of judges, clarifies which acts are legal and which are illegal, strengthens equality before the law of all individuals, etc.), the state (supporting the security and stability of judicial system, strengthening security of laws, maintain public order, etc.) and for international cooperation in the domain of criminal law ( common conventions, development of international criminal law, procedural law, etc.). The importance of this principle can be illustrated through these words: “Only despotism, would wish to abolish the principle.”88 Also, this principle helps to limit judicial power and ensures, “that the judges of the nation are only . . . the mouth which pronounces the words of the law, they are only inanimate beings who can neither moderate its force nor its rigour.”89 Glaser, writing the article Nullum Crimen Sine Lege, concludes the following: “It is, indeed, also a powerful barrier against tendencies towards abuse of justice. It is unquestionably one of the most important safeguards against the worst of all oppressions-that oppression which hides itself under the mask of justice”.90

Professor Liszt refers to this principle as the Magna Charta of the delinquent, because it protects them against the retroactive application of law. On the other hand, this approach has been criticized based on the thinking that this principle is not in place to protect criminals, but to ensure individual rights and the right of innocents in order not to be exposed to arbitrary judicial decisions. It is of the utmost importance for every individual to know what acts are considered wrongful or legal. “The fundamental right of man: the freedom of the individual would be, in fact, illusory, if we were to abolish the requirement that offences and punishments be determined by law. Nobody could be certain of the future. The modern doctrine of guilt has arrived at the conclusion that without knowledge of the illegality of an act there can be no guilt in committing it.”91

When it comes to the principle of legality in criminal law, different countries have adopted different names and versions, like the requirement of lex certa, the principle of non-retroactivity of crimes and punishments, the requirements of lex stricta, the rule against ex post facto laws, and other variations. But the core principle remains the same.

The principle of legality is entrenched in international legal documents such as the Universal Declaration of Human Rights (UDHR) from 1948, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) from 1950, the International Covenant on Civil and Political Rights (ICCPR) (1966) and the American Convention on Human Rights (ACHR) from 1969. Article 11 of the UDHR states: “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”.

This next part of the analysis provides a brief overview of legal findings of this principle at the Nuremberg Tribunal. When it comes to the Nuremberg trials, it is important to mention that the principle of legality was not part of the Charter of the International Military Tribunal. The main question that was at the core of the legitimacy of the Nuremberg tribunal was the basic question of the existence of a definition of war crimes and crimes against humanity before 1945. The findings of the Judgment of the International Military Tribunal for the German Major War Criminals, in the so-called Nuremberg Judgment stated that:

“The maxim ‘nullum crimen sine lege’ is not a limitation of sovereignty but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished (Nuremberg Judgment 217)”92.

The indictment, in the name of the four prosecuting nations (the United States, Great Britain, France and Russia) was issued in October 1945. The accused were charged with Crimes Against Peace, War Crimes, Crimes Against Humanity and of a Common Plan and Conspiracy to commit those crimes.93 According to the Prosecutors, crimes claimed in the Charter were already part of international law. For instance, crimes against humanity were also, “common law crimes such as theft, looting, ill-treatment, enslavement, murders and assassinations, crimes provided for and punishable under the penal laws of all civilised States”94. On the other side, defenders made some counter arguments regarding the issue of ex post facto application of crimes against humanity and of war crimes. Otto Stahmer who was the defendant of Hermann Goring, Reichsmarschall and commander of the Luftwaffe, stated that the crimes enshrined in Article 6 should not be applied and respected by the Tribunal if those crimes were not defined as such at the time of commission. Otto Pannenbecker, the defender of Wilhelm Frick, Hitler’s Minister of the Interior, reminded that the Tribunal had to follow the principle of legality. He stated that: “the prohibition of retroaction of penal law is a . . . legal principle [that has] found general recognition in all civilized countries as a prerequisite and basic precept of justice” and that it is one of the “legal principles of international custom”95.

Briefly, the main Judgement of the Nuremberg Tribunal held that aggressive war was a crime that existed before WWII, finding its roots in customary international law, especially in the 1907 Hague Convention. This Convention has, according to the Tribunal, had become a part of the law in all civilized nations by 1939. When it comes to the issue of crimes against humanity, there is no provision in which the Tribunal has stated clearly that it existed in international law at the time when the crime was committed.

The issue of legality was also very much present before the International Military Tribunal for the Far East (IMFTE), or Tokyo Tribunal. The Tokyo tribunal was not established by international agreement, but by the proclamation96 of Supreme Allied Commander for the Far East, General Douglas MacArthur. The judgment contained decisions regarding the principle of legality similar to those of Nuremberg Tribunal. According to the judgment, crimes against humanity, aggressive war and crimes against peace did exist at the time of World War II. This decision produced a legal debate and a criticism, especially by Justice Pal from India. In his separate opinion, he claimed that crimes against peace did not exist at the beginning of WWII, and he fiercely criticised the Allied Powers because they specifically “created” crimes that “would be applicable to the defendants, especially by creating crimes against peace (aggressive war)”97.

The principle of legality is a fundamental principle of international criminal courts. At this stage, it is useful to examine this principle in the context of the ICTY. When it comes to the subject matter jurisdiction of the ICTY, it covers crimes that are part of customary international law. The Tribunal has jurisdiction to prosecute persons for serious violations of international humanitarian law,98 like violations of war and the customs of war, genocide and crimes against humanity. As war and customs of war are concerned they became part of customary law by the fourth Hague Convention on the Laws and Customs of War on Land of 1907. Crimes against humanity have been a part of customary law by the Principles of International Law recognized in the Statute of the Nuremberg Tribunal, and the crime of genocide through the Convention on the Prevention and Punishment of the Crime of Genocide from 1948. “In the view of the Secretary General the application of the nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary international law so that the problem of adherence of some but not all States to specific conventions does not arise”99.

2.2 The Principle of Legality and Joint Criminal Enterprise

This section will focus on the principle of legality regarding Joint Criminal Enterprise and the ICTY. When dealing with JCE and its application before the ICTY the first issue worth noting is that this form of liability is not explicitly stated in the Statute of this Tribunal, and therefore is not specifically under its jurisdiction. As mentioned above (Development of JCE Chapter), JCE emerged in the Tadić trial decision, based on customary international law,100 such as the judgements of WWII military tribunals, national laws of several countries, the Rome Statute of the International Criminal Court and the International Convention for the Suppression of Terrorist Bombings. “This interpretation, based on the Statute and the inherent characteristics of many crimes perpetrated in wartime, warrants the conclusion that international criminal responsibility embraces actions perpetrated by a collectivity of persons in furtherance of a common criminal design. It may also be noted that – as will be mentioned below –international criminal rules on common purpose are substantially rooted in, and to a large extent reflect, the position taken by many States of the world in their national legal systems.”101 According to the Appeals Chamber, JCE is based on customary law which can be seen through this finding. “Many post-World War II cases concerning war crimes proceed upon the principle that when two or more persons act together to further a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all the members of the group. Close scrutiny of the relevant case law shows that broadly speaking; the notion of common purpose encompasses three distinct categories of collective criminality”.102 It found that JCE is part of customary law beyond any doubt, and that it is actually implicitly enshrined in the Statute of the ICTY in Article 7 (1). The decision of the Appeals Chamber has been adopted and used and has never been questioned again before this court. This was supported by the Appeals Chamber decision in the Ojdanić case in which it stated: “The Appeals Chamber does not propose to revisit its finding in Tadić concerning the customary status of this form of liability. It is satisfied that the state practice and the opinio juris reviewed in that decision was sufficient to permit the conclusion that such a norm existed under customary international law in 1992 when Tadić committed the crimes for which he had been charged and for which he was eventually convicted”103. What is of particular concern is the attitude of Chambers and passivity of amicus curiae because they did not provide any additional arguments in favour of this form of liability or on the other hand against it.104

It is time to examine the cases that were the foundation of ICTY claims that JCE is a part of customary international law.

When it comes to the Dachau cases the main charge was related to the fact that all charged acted with common purpose in subjecting civilians and prisoners of war to cruelty and treatment which included murder, torture, starvation, and other forms of abuse. According to the defence, the common purpose was not a criminal offence as such, and that such a formulation itself put the defendant in doubt whether he was charged with a conspiracy or not. The Court stated that common purpose is not a separate criminal offence for which the accused were charged, but that common purpose is related to participation with the common intent of abuse and killing of prisoners. When it comes to the issue of conspiracy and common purpose the court stated that the definition for both is the same. That leads to the conclusion that the prosecution, in order to prove common purpose, has to prove the same elements as for conspiracy, in the first place the existence of agreement among the accused. The prosecution in the Dachau case did not provide such evidence. “That is to say, no evidence was offered in the proceedings of the existence of an agreement between the defendants, which is the condicio sine qua non of the criminal offence of conspiracy. Moreover, some of the defendants did not even know each other nor did they hold their functions in the camp at the same time. Therefore it is obvious that the burden of proof, although on the prosecution, would be far smaller than it would be if the prosecution had to prove the existence of a conspiracy.”105 The Appeals Chamber mentioned other cases like Otto Ohlendorf et al., or the Einsatzgruppen case ( in which defendants were not charged with creating plans for mass killings in an office, but with the active participation in the implementation of those plans, directly on the ground through supervision, direction and taking on active roles in the bloody harvest), the Essen Lynching case ("each and every one of the accused ... was concerned in the killing of three unidentified airman..."106 "...every person in that crowd who struck a blow is both morally and criminally responsible for the deaths of those three men."107 ), the Borkum Island case (“cogs in the wheel of common design, all equally important, each cog doing the part assigned to it. And the wheel of wholesale murder could not turn without all the cogs"108 ) and D’Ottavio et al (indictment based on “psychological causality, as all the participants had the intent to perpetrate and knowledge of the actual perpetration of an attempted illegal restraint, and foresaw the possible commission of a different crime. This foresight (previsione) necessarily followed from the use of weapons: it being predictable (dovendo prevedersi) that one of the participants might shoot at the fugitives to attain the common purpose (lo scopo comune) of capturing them”109 ) in order to prove the existence of JCE in international customary law.

D’Ottavio is the only case in which the extended form of JCE was approved. The problem is that the Italian Court of Cassation did not continue with the same case law in further cases, and the case law was not consistent.

If one analyse those cases he/she will see that, for instance, in the Essen Lynching case there is no evidence regarding the existence of JCE liability. In the Borkum Island case there is no JCE since the court convicted some of the accused on murder and assault, and some just of assault based on the individual contribution of the accused to the commission of crimes. None of them was equally culpable for crimes committed by whole group. In the Tadić case the reasoning was that there is JCE, but the Court confirmed the common design doctrine in a different form.110 “At the end of this consideration, we could conclude that the thesis of the Appeals Court in the Tadić case is unconvincing that the JCE (including its extended variant) is undoubtedly part of customary international law, because of its use in the jurisprudence of courts after World War II. In none of the cases (except D’Ottavio case) which, according to the Appeals Chamber, are examples of extended JCE, is there any evidence that the court founded its judgement on that legal construction.”111

After reviewing relevant cases one can conclude that when it comes to substantive crimes, the courts have applied international law but the mode of perpetration was punished by national law. This referenced national law is the law of the United States and the United Kingdom. Statement made in the Tadić case that Joint Criminal Enterprise is a part of customary international law, based on the mentioned cases, is non sequitur.112 “In view of the fact that national law had a much greater role in the acceptance of the theory of the JCE than may be concluded from the judgement by the Appeals Chamber in the Tadić case, and bearing in mind that national legislations mentioned in the judgement do not constitute a coherent legal system, which implies coherent case law, the commentators are right who believe that it was legally incorrect to allow their influence in the formulation of the theory of the JCE, especially its extended variant“113.

Additionally, it should be emphasized that in the Tadić case the ICTY did not rely on the findings of the International Military Tribunal nor the Nuremberg Military Tribunals (with the exception of the Einsatzgruppen case). Article 6 of the International Military Tribunal uses words like “common plan” and “conspiracy”. Control Council No. 10 in Article 2 is using words „connected with plans or enterprises involving its commission”114. If relaying on these provisions ICTY might be more persuasive in determining JCE as a part of customary law. This Thesis will not examine cases adjudicated before the International Military Tribunals, but will consider the Nuremberg trials.

As mentioned above, the only referenced case in the Tadić decision in which international case law was presented was the case Einsatzgruppen. This case refers to paragraph 2 of Article II of Control Council no.10 which considered different forms of “connection to crime which are sufficient to establish guilt”. As noted before, representatives of the United States, Great Britain, France and Russia (the Allied victors) passed an agreement to try war criminals in August 1945. This agreement was supported by 19 other nations, and based on this agreement the Nuremberg Military Tribunal was created. “On 20 December 1945, the Allied Control Council, composed of representatives of the same four above-mentioned nations and constituting the highest legislative authority for Germany, enacted Law No. 10, concerning Punishment of Persons Guilty of War Crimes, Crimes Against Peace, and Crimes Against Humanity. This Tribunal came into being under the provisions of that law, but while the Tribunal derives its existence from the authority indicated, its jurisdiction over the subject matter results from international law valid long prior to World War II.“115

To conclude, neither form of JCE was found to be a part of customary law based on ICTY reasoning in Tadić case. The Appeals Chamber confirmed that the doctrine of JCE is part of two international treaties, the Roma Statute of the International Criminal Court from 1998 and the International Convention for the Suppression of Terrorist Bombings. In the Roma Statute it is stated that a person is criminally responsible if he/she commits the crime or “in any other way contributes to the commission or attempted commission of such crime by a group of persons acting with a common purpose”.116 Article 2 of the International Convention for the Suppression of Terrorist Bombings states that an individual may be held liable for crimes if he or she, “in any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2, by a group of persons acting with a common purpose; such contribution shall be intentional, and either made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned”. The problem with these two international documents is that neither one was in force at the time of commission of crimes, nor do they contain either explicit or implicit reference to Joint Criminal Enterprise.117 If one takes a look at the above-mentioned Article 2 of the International Convention for the Suppression of Terrorist Bombings, the conclusion is that like JCE, this is a case of collective criminality. But unlike JCE in which perpetrators only foresee criminal act which is committed based on an agreed common purpose as a natural and foreseeable consequence of JCE, in Article 2 of the Convention there must be intent, and the perpetrator contribute through his act (or inaction) to commission of crime.

One of the arguments for the existence of JCE in customary law referenced by the Appeals Chamber was related to the existence of this doctrine in some national jurisdictions. Several are relevant: Germany and the Netherlands (in which a co-perpetrator is not responsible for the act of another co-perpetrator that falls out of the scope of common purpose), and Canada, France, Italy, England, the USA, Wales, Australia and Zambia, in which JCE is accepted in its widest form (in which all members of a common plan or purpose are considered to be criminally responsible for the crime, regardless of their individual role, and if any member commits a crime that is outside of the common purpose all members are still fully responsible for that). When it comes to Canada, France, Italy, England, the USA, Wales, Australia and Zambia, it cannot be definitively concluded that they have in fact accepted this widest definition of JCE since there is much debate going in those states regarding how JCE is compliant with the principle of guilt. Accordingly, this argument does not rest on a strong foundation.

In order to prove the existence of international customs, there are two elements that have to be proved an objective element and subjective element. An objective element is a state practice that has to be general, and be practiced by a larger number of states. A subjective element (opinio juris) is the legal conviction about legal obligation regarding a practice. Such a practice should be permanent, uniform and continuous; not arbitrary or a “one-off”. Based on previous analysis one can conclude that JCE is not part of customary international law “...analysis leads to the conclusion that neither in the second instance judgement in the Tadić case, nor in the other judgements by the ICTY, is any convincing evidence offered that the JCE is firmly established in customary international law and implicitly upheld in the Statute of the ICTY. The creation of this form of responsibility in the case law of the ICTY is a violation of the principle of legality as one of the fundamental principles of contemporary international criminal law”118.

In conclusion, the principle of legality is one of the main sources of criticism towards the application of the doctrine of Joint Criminal Enterprise. As shown in this chapter, the ICTY in its reasoning and applied methodology failed to prove that JCE is a part of customary international law.

3. Application of Joint Criminal Enterprise before other International Tribunals

In order to better understand the process of development of and challenges to the application of Joint Criminal Enterprise, this chapter will provide an overview of the most important cases adjudicated in different ad hoc tribunals, mainly looking at the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC).

3.1 Special Court of Sierra Leone and application of Joint Criminal Enterprise

The Special Court of Sierra Leone (SCSL) was established through the common efforts of the United Nations (Security Council Resolution 1315 from the year 2000) and the Government of Sierra Leone, with the aim of prosecuting high level perpetrators of serious violations of international humanitarian law during the armed conflict; concretely crimes committed during Sierra Leone’s Civil War (1991-2002) committed after 30 November 1996. The competences of the Court are regulated in Article 1 which states that:

“1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.
“2. Any transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organizations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State.
3. In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons.”119


1 Danner, A. M., & Martinez, J. M., (2005) Gulity Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, California Law Review, 93 (1) January, p. 2.

2 Duško Tadić case was the first case before the ICTY.He was arrested by German police in 1994 and was sentenced to 20 years imprisonment in 2000. This case is of great importance when it comes to the definition and development of Joint Criminal Enterprise. As it is stated on page 368 of An Introduction to International Criminal Law and Procedure (R. Cryer, H. Friman,D. Robinson and E. Wilmshurst 2010) “Nonetheless the ICTY has developed a detailed jurisprudence on what it terms 'joint criminal enterprise' (or common purpose) liability.“

3 Danner, A. M., & Martinez, J. M.,(2005) Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, California Law Review, 93 (1) January, p. 2.

4 Pjanić, J., (2007), Joint Criminal Enterprise, OKO War Crimes Reporter, 4, p.6.

5 Agreement for the prosecution and punishment of the major war criminals of the European Axis, and Charter of the International Military Tribunal. It was issued on 8 August 1945.

6 The Charter and Judgment of the Nuremberg Tribunal, History and Analysis (Memorandum submitted by Secretary General), United Nations General Assembly, International Law Commission, Lake Success, New York,1949.

7.. (a) Crimes against peace: Namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

8 Ramer, J.A., Hate By Association: Individual Criminal Responsibility for Persecution Through Participation in a Joint Criminal Enterprise, Journal of International and Comparative Law 31, p.9.

9 Conspiracy is a crime that has emerged in common law. It is defined as an agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors.

10 „The Nazi Government and its Party and State agencies ... should be charged before an appropriately constituted international court with conspiracy to commit murder, terrorism, and the destruction of peaceful populations in violation of the laws of war [O]nce the conspiracy is established, each act of every member thereof during its continuance and in furtherance of its purposes would be imputable to all other members thereof.“ Shane Darcy, Collective Responsibility and Accountability under International Law, Library of Congress Cataloging-in-Publication Data, The Netherlands, 2007, p.200.

11 Pomorski, S., (ed.) (1990). Conspiracy and Criminal Organizations in The Nuremberg Trial and International Law George Ginsburgs & V.N Kudriatsev, eds.1990, pp.213-216 .

12 "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes [Crimes Against Peace, War Crimes, and Crimes Against Humanity] are responsible for all acts performed by any persons in execution of such plan.“ Article 6 of Charter of the International Military Tribunal.

13 Damgaard, C., (2008). Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues [Internet].Copenhagen, University of Copenhagen, p.132, Available from:

14 Smith, B.F., (1982). The American Road to Nuremberg: The Documentary Record 1944-1945. Hoover Institution Press, pp. 33-35.

15 The Malmedy massacre. Trial for this massacre (U.S. vs. Valentin Bersin, et al.) was held in May-July 1946 as a part of Dachau concentration camp trial.

16 Damgaard, C.supra note 13, p.134.

17 Ibid. p.134.

18 Ibid. p. 134.

19 Punja, R.K (2003) Issue: What Is the Distinction between „Joint Criminal Enterprise“ as Defined by the ICTY Case Law and Conspiracy in Common Law Jurisdictions?, Case Western University School of Law, International War Crimes Research Lab, Memorandum for the Office of the Prosecutor of the ICTR,.p..40-41.

20 Taylor, T., (1992). The Anatomy of the Nuremberg Trials: A Personal Memoir, Knopf Doubleday Publishing Group, p. 558.

21 International Military Tribunal for the Far East (IMTFE) was established on January 19 1946. The Tokyo Trials began on 3rd of May and lasted for two and a half years. The Tribunal closed its operations on November 12, 1948. This Tribunal tried approximately 5000 people out of which 900 were sentenced to death and more than half to life imprisonment.

22 Boister, N., Cryer, R., Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgements, Oxford, Oxford University Press, p 525.

23 Established on 25 May 1993 by United Nations Security Council resolution 827 (

24 Duško Tadić, Trial Judgement, ICTY,

25 Prosecutor v.Tadić, Appeal Judgement ICTY, para. 233.

26 Ibid. para. 173.

27 Ibid.para. 183.

28 Ibid. para. 188.

29 Ibid. para.195.

30 Ibid. para. 196.

31 Trial of Otto Sandrock and Three Others before British Military Court for the Trial of War Criminals, Held at The Court House, Almelo, Holland.

32 Gustav Alfred Jepsen and others before British Military Court for the Trial of War Criminals, Held at Hamburg, Germany in 1947.

33 Cassese, A., (2009). The Oxford Companion to International Justice, Oxford, Oxford University Press, 2009, page. 734.

34 Trial of Gustav Alfred Jepsen and others, Proceedings of a War Crimes Trial held in Luneberg, Germany (13-23 August, 1946), judgement of 24 August 1946 (original transcripts in Public Record Office, Kew, Richmond, on file with the International Tribunal's Library).

35 Trial of Franz Schonfeld and others, British Military Court, Essen, June 11th-26th, 1946, UNWCC, vol. XI,p. 68 (summing up of the Judge Advocate).

36 „After the victory over the Nazis, a government of occupation was established under what was known as the Control Council. Although the International Military Tribunal at Nuremberg was responsible for prosecuting the major Nazi war criminals, the Control Council issued Law No. 10 to provide a legal framework for the trials of 'lesser' Nazis“.

37 United States v. Otto Ohlendorf et al. Source.

38 Knežević, C.J, (2004). Memorandum for the Office of the Prosecutor of the International Criminal Tribunal for Rwanda; Issue: Joint Criminal Enterprise – What is the Degree of Participation Required for the Conviction ? An Exhaustive Memo of the Jurisprudence on Joint Criminal Enterprise, p. 11.

39 Tadić Judgement, supra note 23,para. 202.

40 This trail was held in former concentration camp in Dachau.


42 Trial of Martin Gottfried Weiss and thirty-nine others, General Military Government Court of the United States Zone, Dachau, Germany, 15 November - 13 December, 1945, UNWCC, p. 13.

43 Trial of Josef Kramer and 44 others, British Military Court, Luneberg, 17th September - 17th November, 1945, UNWCC, vol. II, p. 1.

44 Law reports of Trials of War Criminals, United Nations War Crimes Commission, Volume II, The Belsen Trial, p. 4, 1947.

45 Ibid. p. 121.

46 Tadić Appeal judgement, para. 203.

47 Tadić Appeal judgement, para. 204.

48 Ibid. para. 204.

49 Trial of Erich Heyer and six others, British Military Court for the Trial of War criminals, Essen , 18th -19th and 21st and 22nd December, 1945., UNWCC.

50 United States v Kurt Goebell et al.

51 Trial of Erich Heyer and six others, British Military Court for the Trial of War criminals, Essen , 18th -19th and 21st and 22nd December, 1945., UNWCC, vol. I, page 89.

52 See transcript in Public Record Office, London, WO 235/58 p. 65.

53 Ibid, p. 66.

54 UNWCC, vol. 1, p. 91. In addition to Heyer and the escort (Koenen), three civilians were also convicted. The first of the accused civilians, Boddenberg, admitted to have struck one of the airmen on the bridge, after one of them had already been thrown over the bridge, knowing “that the motives of the crowd against them [the airmen] were deadly, and yet he joined in” (Transcript in Public Record Office, London, WO 235/58, p.67; copy on file with International Tribunal’s Library); the second, Kaufer, was found to have “beaten the airmen” and taken “an active part” in the mob violence against them. Additionally, it was alleged that he tried to pull the rifle away from a subordinate officer to shoot the airmen below the bridge and that he called out words to the effect that the airmen deserved to be shot (ibid., pp. 67-68). The third, Braschoss, was seen hitting one of the airmen on the bridge, descending beneath the bridge to throw the airman, who was still alive, into the stream. He and an accomplice were further alleged to have thrown another of the airmen from the bridge (ibid., p. 68). Two of the accused civilians, Sambol and Hartung, were acquitted; the former because the blows he was alleged to have inflicted were neither particularly severe nor proximate to the airmen’s death (comprising one of the earliest to be inflicted) and the latter because it was not proved beyond reasonable doubt that he actually took part in the affray (ibid., pp. 66-67, UNWCC, vol. I, p. 91).

55 Koessler, M., (1956). Borkum Island Tragedy and trial, Journal of Ctriminal Law and Criminolgy, 47(2), p. 187.

56 Charge Sheet, in U.S. National Archives Microfilm Publications, I.

57 Ibid., p.1186 (emphasis added). See also p. 1187.

58 J.D. Ohlin, J.D., (2011) Joint Intentions to Commit International Crimes, Cornell Law Faculty Publications, p. 708.

59 Charge Sheet, supra note 56, p. 1190. See also pp.1191-1194.

60 Danner, A. M., & Martinez, J. M., (2005) Gulity Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, California Law Review, 93 (1) January, p. 107.

61 Ibid. p.108.

62 Pound, R., (1904), Readings on the History and System of the Common Law, Jacob North & Co. p. 45.;view=1up;seq=9.

63 Forty – nine States within USA are following common law system. Only, the state of Louisiana has mixed legal system in between common law and civil law.

64 Pound, R.,supra note 62. p. 46.

65 The Common Law and Civil Law Traditions, page. 3.

66 O'Connor, V., (2012). Practitioners guide, Common Law and Civil Law Traditions, International Network to promote the Rule of Law, p. 11.

67 Latin legal maxim means that the court knows the law.

68 O’Connor, V.,(2012) supra note 66,p.26.

69 Shaw, M.N., (2008) International Law, Cambridge, Cambridge University Press,Sixth edition, p. 70.

70 Article 38 of the Statute of The International Court of Justice.

71 International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, Case Concerning The Continental Shelf (Libyan Arab Jamahiriya/Malta),Judgement,1985, para. 27.

72 Shaw, M.N.,International Law, p. 76.

73 Shaw, M.N., International Law, pp. 74-75.

74 Ibid. Page. 76.

75 Brownlie, I., (2008) Principles of Public International Law, New York, Oxford University Press.

76 International Court of Justice, Summaries of Judgments, Advisory Opinions and Orders, North Sea Continental Shelf Cases Judgement,1969, page. 74.

77 Brien, J., (2001) International Law, London, Cavendish publishing Limited, p. 72.

78 North Sea Continental Shelf Cases, 1969 I.C.J. Rep. 3, 44, para. 77.

79 United Nations War Crimes Commission, Law Reports of Trials of War Criminal, English Edition, Volume I, London,1947,page.43.

80 Ibid. page 40

81 Tadić Appeal Judgement, para.201.

82 Glaser, S., (1942) Nullum Crimen Sine Lege, Journal of Comparative and International Law, 24 (1), p. 29.

83 Tamanaha, B.C.,On the Rule of Law: History, Politics, Theory 97–98, p.139.

84 Bojanić, I.,et al.(2007) Theory of Joint Criminal Enterprise and International Criminal Law-Challenges and Controversies, Academy of Croatian Legal Sciences,page 67.

85 Paul Johann Anselm Ritter von Feuerbach, (1801) Lehrbruch des germenien in Deutschland gultigen peinlichen Rechts .

86 Hall, J., (1937) Nulla Poena Sine Lege, The Yale Law Journal, 47, (2), p. 170.

87 Gleser, S., Nullum Crimen Sine Lege, p. 30

88 Berner, A.F., (1898) Lehrbuch des deutschen Strafrechts, 18th ed., p. 231.

89 Montesquieu, C., De l'esprit des lois, livre XI, chapter VI.

90 Gleser, S., Nullum Crimen Sine Lege, p. 37.


92 Nuremberg Judgement, para. 217

93 Indictment, International Military Tribunal, the United States of America, The French Republic, The United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republic against Hermann Wilhelm Goering, Rudolf Hess, Joachim Von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank,Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Gustav Krupp Von Bohlen und Halbach, Karl Doenitz, Erich Raeder, Baldur Von Schirach, Fritz Sauckel, Alfred Jodl, Martin Borman, Franz Von Papen, Arthur Seyss-Inquart, Albert Speer, Constantin Von Neurath, and Hans Fritzsche, Individually and as Members of Any of the Following Groups or Organizations to which They Respectively Belonged, Namely: DIE REICHS REGIERUNG (REICH CABINET); DAS KORPS DER POLITISCHEN LEITER DER NATIONALSOZIALISTISCHEN DEUTSCHEN ARBEITERPARTEI (LEADERSHIP CORPS OF THE NAZI PARTY); DIE SCHUTZSTAFFELN DER NATIONALSOZIALISTISCHEN DEUTSCHEN ARBEITERPARTEI (commonly known as the "SS") and including DER SICHERHEITSDIENST (commonly known as the "SD"); DIE GEHEIME STAATSPOLIZEI (SECRET STATE POLICE, commonly known as the "GESTAPO"); DIE STURM ABTEILUNGEN DER NSDAP (commonly known as the "SA"); and the GENERAL STAFF and HIGH COMMAND of the GERMAN ARMED FORCES, all as defined in Appendix B, Defendants.

94 F. de Menthon, Opening Statement,3 IMT, Trial at 92.

95 Pannenbecker, Argument,18 IMT, Trial at164. Accord Gustav Steinbauer, Argument for Arthur Seyss-Inquart, 19 IMT, Trial at 46, 52–53 (“this principle nullum crimen nulla poena sine lege [is] firmly rooted in almost all law books” – a claim that it is a general principle of law, though the text relies most heavily on the place of the principle in the law of Germany’s enemy, and his client’s prosecutor, France). Cf. Otto Freiherr von Ludinghausen ¨ for defendant Constantin von Neurath, 19 IMT, Trial at 216, 219 (“in sharp contrast to the principles of law of all democratic states, of every democratic-liberal principle of law [the tribunal] proposes to pass judgment and inflict punishment for actions which at the time they were committed were not governed by law” – not including all civilized states,but only democratic ones, as the source of general principles of law). 155Pannenbecker, Argument,18 IMT, Trial at165.

96 Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Military Tribunal for the Far East (19 January 1946).

97 Gallant, K.S., (2009) The Principle of Legality in International and Comparative Criminal Law, Cambridge University Press, p. 152.

98 Statute of the International Criminal Tribunal for the Former Yugoslavia, Article 1.

99 United Nations Security Council report of the Secretary General pursuant to Paragraph 2 of Security Council Resolution 808, 3 May 1993, para.34.

100 Tadić Appeal Judgement, para.194.

101 Tadić Appeal Judgement, para. 193.

102 Ibid.para. 195.

103 Decision Dragoljub Ojdanić's motion challenging jurisdiction-JCE, 2003. Para.21

104 Bojanić, I.,et al.,supra note 84, page. 66.

105 Bojanić, I.,et al., Supra note 84. page. 72.

106 See transcript in Public Record Office, London, WO 235/58 p. 65.

107 Ibid., p. 66.

108 Tadić Appeal Judgement, para. 210.

109 Ibid. 215.

110 Ibid. 212

111 Bojanić, I.,et al.,supra note 84, page. 83.

112 Danner, A. M., & Martinez, J. M., (2005) Gulity Associations: Joint Criminal Enterprise,Command Responsibility, and the Development of International Criminal Law, California Law Review, 93 (1) January, p.112.

113 Bojanić, I.,et al.,supra note 84, page.80.

114 XVII.

115 Trials of War Criminals Before the Nurenberg Military Tribunals Under Control Council Law No. 10, Volume IV, Nuremberg, October 1946-April 1949, page. 454.

116 ICC Statute, art 25.

117 Bojanić, I.,et al.,supra note 84, page. 86.

118 Bojanić, I.,et al.,supra note 84, page. 103.

119 Statute of the Special Court for Sierra Leone.

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The doctrine of Joint Criminal Enterprise in the legal framework of Bosnia and Herzegovina
Is it necessary for adjudication of war crime cases?
Sarajevo School of Science and Technology
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Srdjan Vidackovic (Author), 2015, The doctrine of Joint Criminal Enterprise in the legal framework of Bosnia and Herzegovina, Munich, GRIN Verlag,


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