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Point of No Return: Joint Criminal Enterprise in Brđanin

Published online by Cambridge University Press:  02 February 2010

CLIFF FARHANG
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Abstract

In the Brđanin and Krajišnik judgments, the ICTY Appeals Chamber found that the accused may incur criminal liability for crimes carried out by low-level non-joint criminal enterprise (JCE) physical perpetrators who are used as tools or are otherwise instrumentalized by JCE members other than the accused to carry out the crimes of the common plan. Similarly, the Appeals Chamber held that the accused may also incur liability for crimes of excess committed by non-JCE perpetrators. However, as for the precise nature of liability in such cases, no clarification was provided. From this ambiguity the author detects an inclination on the part of the Appeals Chamber to construe JCE not only as an expression of commission but also of complicity. The author then identifies and elaborates the theoretical difficulties that this construction would instil in the traditional doctrine of JCE as formulated by the Tadić Appeals Chamber and the international law of individual criminal responsibility. He suggests that awareness of these very problems of theory is the reason behind the conspicuous ambiguity in Brđanin and Krajišnik as to the nature of JCE liability.

Keywords

accomplice liabilityAppeals Chamber, ICTYindividual criminal responsibilityjoint criminal enterprise
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Information
Leiden Journal of International Law , Volume 23 , Issue 1 , March 2010 , pp. 137 - 164
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Powles, S., ‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?’, (2004) 2 Journal of International Criminal Justice 606CrossRefGoogle Scholar; Badar, M., ‘“Just Convict Everyone!” – Joint Perpetration: From Tadić to Stakić and Back Again’, (2006) 2 International Criminal Law Review 293CrossRefGoogle Scholar; Danner, A. M. and Martinez, J. S., ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, (2005) 93 California Law Review 75Google Scholar; Ohlin, J., ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’, (2007) 5 Journal of International Criminal Justice 69CrossRefGoogle Scholar.

2 For defences of the doctrine see O'Rourke, A., ‘Joint Criminal Enterprise and Brđanin: Misguided Over-correction’, (2006) 47 Harvard International Law Journal 307Google Scholar; Cassese, A., ‘The Proper Limits of Criminal Responsibility under the Doctrine of Joint Criminal Enterprise’, (2007) 5 Journal of International Criminal Justice 109CrossRefGoogle Scholar; Gustafson, K., ‘The Requirement of an “Express Agreement” for Joint Criminal Enterprise Liability: A Critique of Brđanin’, (2007) 5 Journal of International Criminal Justice 134CrossRefGoogle Scholar; Prosecutor v. Kaing Guek Eav, Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal of International Criminal Justice on Joint Criminal Enterprise Doctrine before the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, Case No. 001/18–07-2007-ECCC/OCIJ, PT. Ch. II, 27 October 2008, available in (2009) 20 Criminal Law Forum 289. For a comprehensive overview of the genesis and development of the doctrine in the jurisprudence of the ad hoc tribunals see G. Boas, J. Bischoff, and N. Reid, International Criminal Law Practitioner Library – Volume 1: Forms of Responsibility in International Criminal Law (2008), 7 ff.; Bogdan, A., ‘Individual Criminal Responsibility in the Execution of a “Joint Criminal Enterprise” in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia’, (2006) 6 International Criminal Law Review 63CrossRefGoogle Scholar; C. Damgaard, Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues (2008), 127 ff.

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4 van der Wilt, H., ‘Joint Criminal Enterprise: Possibilities and Limitations’, (2007) 5 Journal of International Criminal Justice 91, at 97 ffCrossRefGoogle Scholar.

5 Prosecutor v. Tadić, Judgement, Case No. IT-94–1-A, A. Ch., 15 July 1999.

6 Ibid., para. 227.

7 Ibid., paras. 196, 220.

8 Ibid., paras. 203, 220.

9 Ibid., paras. 204, 220, 228.

10 For comprehensive critiques of the Tadić Appeals Chamber's reasoning on this particular point see H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (2009), 50–67; A. Zahar and G. Sluiter, International Criminal Law: A Critical Introduction (2008), 223–33.

11 Boas et al., supra note 2, at 34; Ambos, K., ‘Joint Criminal Enterprise and Command Responsibility’, (2007) 5 Journal of International Criminal Justice 159, at 161CrossRefGoogle Scholar; Cassese, supra note 2, at 110.

12 Prosecutor v. Brđanin, Judgement, Case No. IT-99-36-A, A. Ch., 3 April 2007, paras. 393–414; Prosecutor v. Krajišnik, Judgement, Case No. IT-00-39-A, A. Ch., 17 March 2009, paras. 662–6. Hereinafter, this broadened notion of JCE will be referred to as ‘Brđanin JCE’ followed by ‘(I)’ or ‘(III)’ as necessary.

13 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted by Security Council Res. 872, UN Doc. S/RES 827 (1993).

14 See section 2.1, infra, particularly note 92.

15 Kadish, S. H., ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’, (1985) 73 California Law Review 323, at 337CrossRefGoogle Scholar.

16 Prosecutor v. Tossani, Judgment, Case No. 1446, Italian Court of Cassation, Criminal Section II, 17 September 1946; Prosecutor v. D'Ottavio et al., Judgment, Case No. 270, Italian Court of Cassation, Criminal Section I, 12 March 1947; Prosecutor v. Berardi, Judgment, Case No. 996, Italian Court of Cassation, Criminal Section II, 27 August 1947; Prosecutor v. Mannelli et al., Judgment, Case No. 914, Italian Court of Cassation, Criminal Section I, 20 July 1949. Excerpts from the judgments are available in (2007) 5 Journal of International Criminal Justice 227 ff.

17 1945 Charter of the International Military Tribunal, 82 UNTS 280; 1946 Charter of the International Military Tribunal for the Far East, 1589 TIAS 11.

18 Para. (a) of Art. 6 and Art. 5 of the Charters of the IMTs defined crimes against peace as ‘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’.

19 Para. (c) of the above articles, after defining crimes against humanity as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds . . .’, provided that ‘[l]eaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.’

20 Olásolo, supra note 10, at 20–1.

21 Control Council Law No. 10, Art. II(2) provided that ‘[a]ny person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime. . .’. Official Gazette of the Control Council for Germany (1946), Vol. 3, at 50.

22 Werle, G., ‘Individual Criminal Responsibility in Article 25 ICC Statute’, (2007) 5 Journal of International Criminal Justice 953, at 955CrossRefGoogle Scholar.

23 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Yearbook of the International Law Commission (1950), II, 374.

24 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.

25 It is important to note that conspiracy, incitement, and attempt to commit genocide constitute inchoate offences, in that participation towards the end result is itself a crime, independently of consummation of the proscribed component conduct.

26 An exception to this finding is Art. 4(3) ICTY Statute which imports verbatim Art. III of the Genocide Convention.

27 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90.

28 Ibid., Art. 25(3)(a)–(d).

29 E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003), 65. Eser, while admitting that Art. 25 ‘regulates in detail the various forms of perpetration of and participation in an international crime’, holds the view that it ‘by no means contains a comprehensive and definitive compilation of all requirements essential for “individual criminal responsibility”’. A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese, P. Gaeta, and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 767, at 768. In the opinion of this author, however, Eser's claim does not entirely deny that Art. 25 systematizes modes of criminal liability. Rather, it refers to Art. 25's dependence on other substantive and procedural provisions in the Statute. Examples of such provisions are Art. 26, which excludes jurisdiction over individuals under the age of 18, Art. 28, on command responsibility, and Art. 31, which sets out a number of grounds for excluding criminal liability.

30 M. C. Bassiouni, Introduction to International Criminal Law (2003), 262; Engvall, L., ‘The Future of Extended Joint Criminal Enterprise: Will the ICTY's Innovation Meet the Standards of the ICC?’, (2007) 76 Nordic Journal of International Law 241, at 254CrossRefGoogle Scholar.

31 Pacta sunt servanda and pacta tertiis rules enshrined respectively in Arts. 26 and 34 of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

32 Tadić, supra note 5, para. 188; Werle, supra note 22, at 958; Olásolo, supra note 10, at 70.

33 Van Sliedregt, supra note 29, at 68.

34 For an overview of the principal/accessory dichotomy in English and German law see K. Hamdorf, ‘The Concept of Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime’, (2007) 5 Journal of International Criminal Justice 208, at 212–14, 218.

35 G. P. Fletcher, Basic Concepts of Criminal Law (1998), 194.

36 G. P. Fletcher, Rethinking Criminal Law (1978), 636. Derivative liability should not be mistaken for vicarious liability. The latter holds a defendant liable for acts and omissions of another.

37 K. J. M. Smith, A Modern Treatise on the Law of Criminal Complicity (1991), 4.

38 Prosecutor v. Blaškić, Judgement, Case No. IT-95–14-T, T. Ch. I, 3 March 2000, para. 279; Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95–14/2-A, A. Ch., 17 December 2004, para. 26.

39 Kordić and Čerkez, supra note 38.

40 Prosecutor v. Akayesu, Judgement, Case No. ICTR-96–4-T, T. Ch. I, 2 September 1998, para. 480; Kordić and Čerkez, supra note 38.

41 Prosecutor v. Musema, Judgement, Case No. ICTR-96–13-T, T. Ch. I, 27 January 2000, para. 115; Akayesu, supra note 40.

42 Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95–14/2-T, T. Ch. III, 26 February 2001, para. 386; Akayesu, supra note 40.

43 K. Ambos, ‘Superior Responsibility’, in Cassese et al., supra note 29, 823, at 850; Prosecutor v. Delalić et al., Judgement, Case No. IT-96–21-A, A. Ch., 20 February 2001, para. 225. Note that command responsibility contains a much lower subjective requirement than the specific forms of complicity under Article 7(1). The former, moreover, diverges from the latter by not requiring proof that a superior's omission effectively contributed to commission of the offence by his subordinate. For these distinct attributes, it has been called a sui generis form of liability distinct from those set out in Art. 7(1). See Meloni, C., ‘Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?’, (2007) 5 Journal of International Criminal Justice 619, at 632CrossRefGoogle Scholar; Prosecutor v. Hadžihasanović and Kubura, Case No. IT-01–47-A, A. Ch., 22 April 2008, paras. 38–40.

44 Van Sliedregt, supra note 29, at 77–8.

45 Kordić and Čerkez, supra note 38, para. 28; Eser, supra note 29, at 796.

46 Akayesu, supra note 40, para. 483; Prosecutor v. Krstić, Judgement, Case No. IT-98–33-T, T. Ch. I, 2 August 2001, para. 601; Prosecutor v. Stakić, Judgement, Case No. IT-97–24-T, T. Ch. II, 31 July 2003, para. 445; G. Werle, Principles of International Criminal Law (2005), 124.

47 A. Cassese, International Criminal Law (2008), 231.

48 Eser and Ambos argue that active ordering constitutes indirect perpetration. Eser further argues that the insertion of ordering in Art. 25(3)(b) Rome Statute is an unnecessary dilution of this mode of liability to mere complicity. Eser, supra note 29, at 797; K. Ambos, ‘Individual Criminal Responsibility’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), 475, at 480. Similarly, Van Sliedregt is of the view that a person who orders another to commit an offence is not an accomplice ‘but rather a perpetrator by means’. Van Sliedregt, supra note 29, at 78.

49 Blaškić, supra note 38, para. 280.

50 Kordić and Čerkez, supra note 38, paras. 26–27; Krajišnik, supra note 12, para. 662.

51 Kordić and Čerkez, supra note 42, para. 387.

52 In English common law, instigation or incitement constitutes an inchoate offence. See C. Clarkson and H. M. Keating, Criminal Law: Texts and Materials (2003), 520. In international law, incitement becomes an inchoate offence only in relation to the crime of genocide.

53 Prosecutor v. Brđanin, Judgement, Case No. IT-99–36-T, T. Ch. II, 1 September 2004, para. 269.

54 Prosecutor v. Vasiljević, Judgement, Case No. IT-98–32-A, A. Ch., 25 February 2004, para. 102; Prosecutor v. Blaškić, Judgement, Case No. IT-95–14-A, A. Ch., 19 July 2004, para. 45.

55 Blaškić, supra note 54, para. 48.

56 Vasiljević, supra note 54, para. 102; Blaškić, supra note 54.

57 Prosecutor v. Krnojelac, Judgement, Case No. IT-97–25-A, A. Ch., 17 September 2003, para. 75.

58 Tadić, supra note 5, para. 229.

59 Giustiniani, F. Zorzi, ‘Stretching the Boundaries of Commission Liability: The ICTR Appeal Judgment in Seromba’, (2008) 6 Journal of International Criminal Justice 783, at 789CrossRefGoogle Scholar. The Semanza Appeals Chamber reversed the Trial Chamber's conviction entered under aiding and abetting genocide and extermination, and instead entered a conviction for ordering genocide and for ordering extermination. Prosecutor v. Semanza, Judgement, Case No. ICTR-97–20-A, A. Ch., 20 May 2005, paras. 349–364. Similarly, the Appeals Chamber substituted Kamuhanda's conviction for aiding and abetting genocide with the more serious conviction of ordering genocide. Prosecutor v. Kamuhanda, Judgement, Case No. ICTR-99–54A-A, A. Ch., 19 September 2005, para. 77. It must be pointed out that the opinions appended to the latter judgement reveal divisions in the bench concerning the existence of a specialis/generalis arrangement in Art. 7(1).

60 Vasiljević, supra note 54, para. 182; Prosecutor v. Krstić, Judgement, Case No. IT-98–33-A, A. Ch., 19 April 2004, para. 268.

61 Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, IT/32/Rev. 43 (2009).

62 Art. 24(2) ICTY Statute requires the Trial Chamber, when imposing a sentence, to take into account the gravity of the crime and the individual circumstances of the convicted person. Rule 101 of the Rules of Procedure and Evidence, which complements Art. 24(2), provides that the Trial Chamber shall take into account the aggravating circumstances, any mitigating circumstances, including the substantial co-operation with the Prosecutor by the convicted person before or after conviction, the general practice regarding prison sentences in the courts of the former Yugoslavia, and the extent to which any penalty imposed by a court of any state on the convicted person for the same act has already been served, as referred to in Art.10(3) of the Statute.

63 See, e.g., Damaška, M., ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455, at 458–9CrossRefGoogle Scholar.

64 Einheitstäterbegriff, or the unitary perpetration model, is recognized in Art. 14(1) of the German Administrative Offence Act (Ordnungswidrigkeitengesetz). Calls for the adoption of a similar approach in Strafgesetzbuch have been rejected. M. Bohlander, Principles of German Criminal Law (2009), 153–4. Similarly, under French criminal law, imposition of criminal liability on a secondary party requires the following elements: (i) a crime committed by a principal offender, (ii) an act of complicity dispensed by the secondary party with the requisite mens rea. C. Elliott, French Criminal Law (2001), at 85.

65 18 United States Code, s. 2 (emphasis added).

66 As amended by Act of 31 October 1951. Kurland, A. H., ‘To “Aid, Abet, Counsel, Command, Induce, or Produce the Commission of an Offence”: A Critique of Federal Aiding and Abetting Principles’, (2005) 57 South Carolina Law Review 85, at 90Google Scholar.

67 Fletcher, supra note 36, at 650.

68 Smith, supra note 37, at 73. Under Arts. 121–6 of the Code pénal, an accomplice is punished as a principal offender. In contrast to the English and French systems, under German criminal law an accomplice to the commission of a crime deserves a lower sentence than its principal. Under Art. 26 of Strafgesetzbuch, an abetter deserves a sentence equal to the principal, whereas according to Art. 27(1), an aider's sentence is subject to mitigation, as provided for in Art. 49 Strafgesetzbuch.

69 Fletcher, supra note 36, at 636.

70 Kadish refers to the crime of bigamy, which cannot be committed by an unmarried man. An unmarried man, however, may be held liable if there is proof that he aided or abetted a married man in marrying again. supra note 15, at 338–9. The offence of inflicting self-injury with intent to avoid service is another class-specific offence (applicable to armed forces personnel) that can be aided and abetted by non-military individuals.

71 Eser, supra note 29, at 781, 787–8; Ambos, supra note 48, at 477. Ambos has subsequently modified his position. See Ambos, supra note 11, at 172, 178; and Prosecutor v. Kaing Guek Eav, Amicus Curiae Brief in the Matter of the Co-prosecutors’ Appeal of the Closing Order against Kaing Guek Eav “Duch” Dated 8 August 2008 before the Pre-trial Chamber Extraordinary Chambers in the Courts of Cambodia, Case No. 001/18–07-2007-ECCC/OCIJ, PT. Ch. II, 8 August 2008, available in (2009) 20 Criminal Law Forum 353, at 374.

72 Eser, supra note 29; Mantovani, F., ‘The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer’, (2003) 1 Journal of International Criminal Justice 26, at 34–5CrossRefGoogle Scholar; Reggio, A., ‘Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for Trading with the Enemy of Mankind’, (2005) 5 International Criminal Law Review 623, at 645CrossRefGoogle Scholar; Militello, V., ‘The Personal Nature of Individual Criminal Responsibility and the ICC Statute’, (2007) 5 Journal of International Criminal Justice 941, at 948–9CrossRefGoogle Scholar. Not surprisingly, the majority of the cited authors hail from a jurisdiction that predominantly employs the unitary perpetration model.

73 Prosecutor v. Lubanga Dyilo, Decision on Confirmation of Charges, Case No. ICC-01/04–01/06, PT. Ch. I, 29 January 2007.

74 Tadić, supra note 5, para. 188.

75 Ibid., para. 220.

76 The Tadić Appeals Chamber distinguished JCE from aiding abetting in the following terms: ‘(i) The aider and abetter is always an accessory to a crime perpetrated by another person, the principal. (ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice's contribution. (iii) The aider and abetter carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. (iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abetter assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.’ Ibid., para. 229.

77 Prosecutor v. Brđanin & Talić, Decision on Motion by Momir Talić for Provisional Release, Case No. IT-99–36/1, T. Ch. II, 28 March 2001, para. 43; Prosecutor v. Krnojelac, Judgement, Case No. IT-97–25-T, T. Ch. II, 15 March 2002, para. 77. The Krstić Trial Chamber, while acknowledging the Tadić Appeals Chamber's finding of ‘the notion of common design as a form of accomplice liability’, viewed it as not being part of the ratio decidendi. Krstić, supra note 46, para. 642. Van Sliedregt also subscribed to JCE as a form of accomplice liability. supra note 29, at 74. It is pointed out that in a more recent publication her position seems to have changed slightly, in that she qualifies JCE as a form of criminal participation governed by principles of derivative liability which nevertheless imply a ‘higher degree of culpability than aiding and abetting’. Van Sliedregt, supra note 3, at 202–3.

78 Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction – Joint Criminal Enterprise, Case No. IT-99–37-AR72, A. Ch., 21 May 2003 (hereinafter Ojdanić Decision), para. 20.

79 Krnojelac, supra note 57, paras. 28–32, 73; Prosecutor v. Rwamakuba, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, Case No. ICTR-98-44-AR72.4, A. Ch., 22 October 2004, para. 30; Prosecutor v. Gacumbitsi, Judgement, Case No. ICTR-2001-64-A, A. Ch., 7 July 2006, para. 158. In Krstić, the Appeals Chamber clearly distinguished between JCE as a form of commission on the one hand, and aiding and abetting on the other. Subsequently it set aside the accused's conviction as a participant in a joint criminal enterprise to commit genocide and instead entered a conviction for aiding and abetting genocide. Krstić, supra note 60, paras. 138 ff.; Vasiljević, supra note 54, paras. 95, 102. See also Gustafson, supra note 2, at 145; Cassese, supra note 47, at 190; Werle, supra note 22. In his textbook Werle discusses JCE under the sub-heading ‘Joint Commission’; supra note 46, at 120. Zahar and Sluiter treat the theory in a similar fashion, but warn that ‘[t]o conceptualize JCE as a form of commission, which has been the standard position at the ICTY, is neither obvious nor necessary’. Supra note 10, at 223.

80 Prosecutor v. Brđanin, Decision on Interlocutory Appeal, Case No. IT-99-36-A, A. Ch., 19 March 2004.

81 Ibid., paras. 6, 9 (emphasis added).

82 Prosecutor v. Brđanin, Judgement, Case No. IT-99-36-T, T. Ch. II, 1 September 2004, paras. 262, 341–344. For an overview of the Brđanin Trial Chamber's findings see O'Rourke, supra note 2, at 315–21.

83 Brđanin, supra note 82 (footnote omitted).

84 Brđanin, supra note 12, para. 390.

85 Prosecutor v. Milutinović et al., Decision on Ojdanić's Motion Challenging Jurisdiction: Indirect Co-perpetration, IT-05-87-PT, T. Ch. I, 22 March 2006, Separate Opinion of Judge Iain Bonomy.

86 United States v. Altstoetter et al., Judgment, US Military Tribunal, 3–4 December 1947, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (1951), III, at 1.

87 United States v. Greifelt et al., Judgment, US Military Tribunal, 10 March 1948, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (1951), IV, at 597.

88 See infra note 107.

89 Brđanin, supra note 12, para. 404.

90 See Art. II(2)(d) Control Council Law No. 10, supra note 21. For a detailed analysis of criminal liability in Justice and RuSHA cases see Olásolo, supra note 10, at 207–12.

91 Brđanin, supra note 12.

92 Ibid., para. 413. Footnote 891 therefrom contains the following: ‘The jurisprudence of the Tribunal traditionally equates a conviction for JCE with the mode of liability of “committing” under Article 7(1). The Appeals Chamber declines at this time to address whether this equating is still appropriate where the accused is convicted via JCE for crimes committed by a principal perpetrator who was not part of the JCE, but was used by a member of the JCE.’

93 Prosecutor v. Krajišnik, Brief on Joint Criminal Enterprise on Behalf of Momčilo Krajišnik, Case No. IT-00-39-A, 7 April 2008, paras. 19–27.

94 Krajišnik, supra note 12.

95 Haan, V., ‘The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia’, (2005) 5 International Criminal Law Review 167, at 172–3CrossRefGoogle Scholar; Sliedregt, E. van, ‘Criminal Responsibility in International Law: Liability Shaped by Policy Goals and Moral Outrage’, (2006) 14 European Journal of Crime, Criminal Law and Criminal Justice 81, at 92CrossRefGoogle Scholar; B. Holá, A. Smeulers, and C. Bijleveld, ‘Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice’, (2009) 22 LJIL 79, at 88.

96 Cassese, supra note 47, at 230 (emphasis added).

97 Severing this interdependence is no less problematic; see section 3.2, infra.

98 See Gustafson, supra note 2.

99 Ibid., 146–7.

100 Given the generalis/specialis relationship, the crimes of JCE1 encompass all those crimes committed pursuant to JCE2. This implies that A is liable for all the JCE2 consonant crimes committed by C. The reverse does not occur, since C in theory cannot be held automatically liable for the full array of crimes perpetrated pursuant to the common plan of JCE1.

101 Gustafson, supra note 2, at 147.

102 Ibid., at 149.

103 See section 1.1, supra.

104 Brđanin, supra note 12, Separate Opinion of Judge Meron, para. 6.

105 This proposition is put forward by Cassese as a possible avenue for taking into account the lower culpability incurred by the accused for crimes of excess under Tadić JCE (III). Worthy of mention also is his contention that JCE-induced prejudices to culpability can always be mitigated at the sentencing stage. See Cassese, supra note 2, at 120. Ohlin gives a convincing rebuttal to Cassese's second thesis which, according to the present author, is equally applicable to the first. According to Ohlin, ‘if culpability were simply a function of sentencing we could dispense with much of the substantive elements of international crimes. One might, for example, dispense with the classification of international crimes into distinct categories and simply replace them with a single offence – one might call it felony with a capital “F” – that would encompass all violations of the laws of war. A judge could then take into account the severity of each violation and craft an appropriate sentence based on individual factual findings. Relative culpability could be maintained in this fashion. This would replicate the kind of rough battlefield justice that was once imposed before the law of war was codified and institutionalized as international criminal law.’ Ohlin, supra note 1, at 87.

106 Cassese, supra note 2, at 120–1.

107 Brđanin, supra note 12, Partially Dissenting Opinion of Judge Shahabuddeen.

108 Ibid., at para 4 (emphasis added).

109 Ibid., at para. 9.

110 Unlike criminal law, the law of state responsibility does not prohibit such posterior recognition in that the responsibility of a state may be implicated when it ex post facto acknowledges or recognizes a certain wrongful conduct as its own. Perhaps the closest criminal law has come to posterior recognition is through the complicity category of accessory after the fact. This category, however, has since been abandoned and replaced by legislated offences of obstructing justice. See Fletcher, supra note 36, at 646; Damaška, supra note 63, at 469, quoting Robinson, P. H., ‘Imputed Criminal Liability’, (1984) 93 Yale Law Journal 609, at 633CrossRefGoogle Scholar.

111 Judge Shahabuddeen, supra note 107, para. 11. This view is shared by Cassese; see supra note 47, at 210–11.

112 Tadić, supra note 5, para. 227; Prosecutor v. Furundžija, Judgement, Case No. IT-95–17/1-A, A. Ch., 21 July 2000, para. 119; Brđanin, supra note 12, para. 418; Krajišnik, supra note 12, para. 163.

113 Judge Meron, supra note 104, para. 8.

114 M. Molan, Cases & Materials on Criminal Law (2005), 332; J. C. Smith, Smith & Hogan Criminal Law (1996), 147.

115 Smith, supra note 114; D. Ormerod, Smith & Hogan Criminal Law (2008), 182.

116 It is noted that this distinction, although maintained in the post-1861 Accessories and Abettors Act, has no real effect on the punishment meted out.

117 S. Forster, Criminal Law and Practice (2008), 190.

118 Prosecutor v. Kvočka et al., Judgement, Case No. IT-98–30/1-A, A. Ch., 28 February 2005, para. 91.

119 Ojdanić Decision, supra note 78, para. 21.

120 See note 10, supra.

121 E. van Sliedregt, ‘System Criminality at the ICTY’, in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (2009), 183 at 196.

122 Co-perpetration through control is a concept well entrenched in German criminal law. For an overview see Bohlander, supra note 64, at 161–7.

123 Stakić, supra note 46, paras. 438–42.

124 Ibid., para. 342.

125 Prosecutor v. Stakić, Judgement, Case No. IT-97–24-A, A. Ch., 22 March 2006, para. 59.

126 Ibid., paras. 62–63.

127 Ibid., paras. 68–98.

128 Lubanga Dyilo, supra note 73.

129 Ibid., para. 327.

130 Ibid., para. 328.

131 Ibid., para. 329.

132 Ibid., para. 330.

133 Olásolo, H., ‘Reflections on the Treatment of the Notions of Control of the Crime and Joint Criminal Enterprise in the Stakić Appeal Judgement’, (2007) 7 International Criminal Law Review 143, at 153CrossRefGoogle Scholar.