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. 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), the Special Court for Cambodia (Extraordinary Chambers in the Courts of Cambodia - ECCC), and the International Criminal Tribunal for Rwanda (ICTR). 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.
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
4.1 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
Research Objectives and Topics
This thesis examines the doctrine of Joint Criminal Enterprise (JCE) in international criminal law, critically evaluating its necessity, legality, and controversial application within the War Crimes Chambers of Bosnia and Herzegovina, specifically analyzing whether it conflicts with continental legal traditions and the principle of legality.
- Historical development and controversial origins of JCE from post-WWII jurisprudence to the ICTY.
- Compatibility of JCE with the principle of legality (nullum crimen sine lege).
- Comparative analysis of JCE application across international tribunals (ICTY, SCSL, ECCC, ICC).
- Integration and practical challenges of JCE within the hybrid legal system of Bosnia and Herzegovina.
- Evaluation of JCE as a potential violation of individual criminal responsibility.
Auszug aus dem Buch
1. Development of the Concept of Joint Criminal Enterprise
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 Charter. According to this Charter, International Military Court was established for the prosecution of war criminals „whose offences have no particular geographic locations”, but it does include reference to membership liability, conspiracy and common design or common plan criminal liability (Article 6(a) of Nuremberg Charter) 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. 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. His opinion was that all the above-mentioned Nazi organizations should be indicted for conspiracy. According to Bernays' plan, these organizations would be tried at the Nuremberg Tribunal, and judges would determine whether an organization is criminal or not.
Summary of Chapters
1. Development of the Concept of Joint Criminal Enterprise: Explores the historical foundations of JCE in post-WWII trials, including common law influences and the debate over its existence in customary international law.
2. Principle of Legality: Analyzes the fundamental principle of nullum crimen sine lege and evaluates criticisms that the application of JCE violates this core tenet of criminal law.
3. Application of Joint Criminal Enterprise before other International Tribunals: Compares the implementation and challenges of JCE across various international and hybrid courts, specifically the SCSL, ECCC, ICC, and ICTY.
4.1 The Court of Bosnia and Herzegovina and Application of the Doctrine of Joint Criminal Enterprise: Investigates the domestic application of JCE in the hybrid War Crimes Chamber of Bosnia and Herzegovina, addressing the collision of common law and continental legal systems.
4.2 Cases transferred to the State Court pursuant to Rule 11 bis: Provides a detailed analysis of specific domestic cases in Bosnia and Herzegovina to illustrate the practical difficulties in applying JCE standards to regional war crime trials.
5. Concluding Remarks: Synthesizes the findings, arguing that JCE remains a controversial legal "rollercoaster" and suggesting that prosecutors should approach this mode of liability with significant restraint.
Keywords
Joint Criminal Enterprise, JCE, international criminal law, principle of legality, nullum crimen sine lege, Bosnia and Herzegovina, war crimes, ICTY, customary international law, individual criminal responsibility, co-perpetration, common purpose, hybrid courts, criminal liability, Nuremberg trials.
Frequently Asked Questions
What is the core subject of this thesis?
The thesis examines the doctrine of Joint Criminal Enterprise (JCE) in international and domestic criminal law, focusing on its controversial application and whether it is a necessary or appropriate mode of liability for war crimes adjudication.
What are the central themes discussed in this work?
The work centers on the historical origins of JCE, its compatibility with the principle of legality (nullum crimen sine lege), its inconsistent application across various international tribunals, and the specific challenges of integrating this common-law-rooted doctrine into the continental legal system of Bosnia and Herzegovina.
What is the primary objective of this research?
The research aims to determine whether the JCE doctrine is effectively justified under customary international law and whether it should continue to be applied in the War Crimes Chambers of Bosnia and Herzegovina, given the availability of other forms of liability.
Which scientific methodology does the author apply?
The author utilizes a comparative analysis and qualitative research approach, reviewing academic literature, international case law, and specific domestic verdicts from the War Crimes Chamber in Bosnia and Herzegovina to scrutinize the necessity and relevance of JCE.
What topics are covered in the main section of the work?
The main sections cover the evolution of JCE from the Nuremberg and subsequent post-WWII trials, an in-depth analysis of the legality principle in international law, and detailed case studies from the SCSL, ECCC, ICC, and the specific application within the Bosnian judiciary.
Which keywords best characterize this thesis?
Key terms include Joint Criminal Enterprise (JCE), principle of legality (nullum crimen sine lege), customary international law, War Crimes Chamber, Bosnia and Herzegovina, individual criminal responsibility, and co-perpetration.
How does the author analyze the JCE in the context of the ECCC?
The author highlights the conflict within the ECCC regarding the applicability of JCE, noting the Pre-Trial Chamber's decision to accept JCE I and II as customary international law while rejecting JCE III, a stance that sparked significant debate among legal scholars.
What conclusion does the author draw regarding the application of JCE in Bosnia and Herzegovina?
The author concludes that JCE operates in a "legal grey area" in Bosnia and Herzegovina, warning that its broad and often over-inclusive application can threaten fair trial rights and complicate the determination of individual criminal responsibility.
- Arbeit zitieren
- Srdjan Vidackovic (Autor:in), 2015, The doctrine of Joint Criminal Enterprise in the legal framework of Bosnia and Herzegovina, München, GRIN Verlag, https://www.grin.com/document/513483
