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Theory of Joint Criminal Enterprise and International Criminal Law – Challenges and Controversies

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Theory of Joint Criminal Enterprise and International Criminal Law – Challenges and Controversies Academy of Croatian Legal Sciences THEORY OF JOINT CRIMINAL ENTERPRISE AND INTERNATIONAL CRIMINAL LAW – CHALLENGES AND CONTROVERSIES Zagreb, MMVII Authors (members of the Academy of Croatian Legal Sciences): Prof.dr.sc. Igor Bojani ć (Professor of Substantive Criminal Law, Osijek Faculty of Law) Prof.dr.sc. Davor Deren činovi ć (Professor of Substantive Criminal Law, Zagreb Faculty of Law) Prof.emerit.dr.sc. Željko Horvati ć (Professor Emeritus of Substantive Criminal Law, Zagreb Faculty of Law) Prof.dr.sc. Davor Krapac (Professor of Procedural Criminal Law, Zagreb Faculty of Law) Prof.dr.sc. Maja Serši ć (Professor of International Law, Zagreb Faculty of Law) 2 “True peace is not merely the absence of tension: it is the presence of justice.” Martin Luther King Jr. 3 T A B L E O F C O N T E N T S CHAPTER ONE DERIVED INDIVIDUAL CRIMINAL RESPONSIBILITY FOR COLLECTIVE INTERNATIONAL CRIMINAL OFFENCES PURSUANT TO THE PROVISIONS OF THE STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA……….1 1. A Reconceptualization of Substantive Criminal Law in the Practice of International Criminal Tribunal for the Former Yugoslavia…………………………….….1 1.1. Political-Ideological Reasons………………………………….……….11 1.2. Legal Reasons…………………………………………………….…….15 2. Command Responsibility…………………………………………………17 2.1. The Establishment of Contemporary Defining Aspects of Command Responsibility………………………………………………………………..20 2.1.1. The Functional Component of Command Responsibility…………….25 2.1.2. The Cognitive Component of Command Responsibility……………..31 2.1.3. The Operative Component of Command Responsibility……………..34 2.2. Criticism of the Institution of Command Responsibility……………….36 2.2.1. The Application of the Standard of Command Responsibility to Non-Military Commanders…………………………………………………………………37 2.2.2 Command Responsibility and the Causation in Crimes by Omission…41 3. Joint Criminal Enterprise………………………………………………….46 3.1. Dilemmas in Relation to the Application of the Joint Criminal Enterprise Theory………………………………………54 4. Conclusion on the Relationship of the Two Forms of Derived Criminal Responsibility According to the Statute of the International Criminal Tribunal for the Former Yugoslavia…………………………………………………………….60 CHAPTER TWO JOINT CRIMINAL ENTERPRISE AND THE PRINCIPLE OF LEGALITY……………………………………………….64 1. Nullum crimen nulla poena sine lege and International Criminal Law……..64 2. Joint Criminal Enterprise in the Case Law of Courts after World War II…..71 3. Joint Criminal Enterprise in International Conventions……………………..76 4. Joint Criminal Enterprise in Comparative Law……………………………...78 5. Discussion……………………………………………………………………81 6. Conclusion……………………………………………………………………94 4 CHAPTER THREE OBJECTIVE ELEMENTS OF THE JOINT CRIMINAL ENTERPRISE THEORY……………………………………………………………..…….104 1. Introductory Remarks……………………………………………………..104 2. Plurality of Persons……………………………………………………….104 2.1. Whether the Principal Perpetrator Must Have Participated in a Common Purpose?...........................................................................................................110 2.2. Is Joint Criminal Enterprise Theory Limited to Enterprises of a Smaller Scale?................................................................................................................114 3. Common Purpose………………………………………………………….117 3.1. Judgement of International Court of Justice in the Case “Application of the Convention on the Prevention and Punishment of the Crime of Genocide“ (Bosnia and Herzegovina v. Serbia and Montenegro) of 26 February 2007…………..121 3.2. Content of the Common Purpose Element.................................................134 4. Participation of the Accused in the Common Purpose….………………….137 5. Conclusion…………………………………………………………………..140 CHAPTER FOUR SUBJECTIVE ELEMENTS OF THE JOINT CRIMINAL ENTERPRISE THEORY………………………………………..….………………………….141 1. Nulla poena sine culpa and International Criminal Law……………………141 2. Guilt in a Basic Joint Criminal Enterprise…………………………………...144 3. Guilt in a Systematic Joint Criminal Enterprise……………………………..146 4. Guilt in an Extended Joint Criminal Enterprise………………………………151 4.1. Extended Joint Criminal Enterprise and Proving Specific Intent (dolus specialis)………………………………………..157 5. Discussion and Conclusion……………………………………………..……167 CHAPTER FIVE QUID FACIT? INDIRECT PERPETRATION (PERPETRATION BY MEANS) AS AN ALTERNATIVE TO JOINT CRIMINAL ENTERPRISE………..174 CHAPTER SIX INSTEAD OF A CONCLUSION - TEN THESIS ON JOINT CRIMINAL ENTERPRISE………………………………………………………..……….186 BIBLIOGRAPHY…………………………………………………………….188 5 CHAPTER ONE DERIVED INDIVIDUAL CRIMINAL RESPONSIBILITY FOR COLLECTIVE INTERNATIONAL CRIMINAL OFFENCES PURSUANT TO THE PROVISIONS OF THE STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 1. A Reconceptualization of Substantive Criminal Law in the Practice of International Criminal Tribunal for the Former Yugoslavia In international criminal law only physical (natural) persons as individuals are subject to criminal responsibility. This is the tradition of domestic criminal law, on which the first attempts at trying war crimes relied after the First World War, especially of the German Kaiser Wilhelm II, on the basis of Article 227 of the Versailles Peace Treaty of 28 June 1919, proceedings before the German military court in Leipzig and some particular peace treaties with defeated states. Although the Statute of the International Military Court in Nuremberg also foresaw the responsibility of “criminal organizations” and the SS, the Gestapo, the secret police and the leadership of the Nazi party were declared to be such organizations, still none of them received punishment, but that responsibility was only declared in the judgment, leaving the right to the authorities of the signatory states to bring before their own courts on the basis of that declaration individuals who belonged to those organizations. After the trials in Nuremberg and Tokyo, the General Assembly of the UN declared the principle of individual criminal responsibility for international crimes to be the first in a series of seven “Nuremberg principles”. 1 It reads: “Principle I: Any person who commits an act which constitutes a crime under international law is responsible thereof and liable to punishment.” The history of this principle from Versailles to the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, together with many other statutes of international criminal law, shows, in the work of five ad hoc international investigative commissions, four ad hoc international criminal courts and several national trials, strengthened by international law for international crimes, the constant mingling of law and politics during the establishing of substantive law and procedural standards, which mingling – in the system of legal rules from various legal sources and in the extremely fragmented international criminal jurisprudence – always gives politics an important influence. 2 This practically means that the use of a legal principle, in the end will depend on the functional methods of its interpretation. They, as is well known, in establishing the sense of the component parts of a legal principle or legal standards, begin with the question of the purpose of that legal standard. Since that question, in the management of every developed social structure, is always 1 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Trial, G.A. Res. 95(I) od 11. XII. 1946, UN Doc. A/64/Add.1. 2 BASSIOUNI 2003, 393-444 6 linked to the question of the legitimacy of the leading political power, the principles of international criminal law are applied in practice in such a way that they will become and remain acceptable tools for maintaining the international political order. The statutes of international criminal courts so far – including what are known as mixed or internationalized criminal courts – adopt the principle of individual criminal responsibility in their introductory or general provisions. In his report to Resolution 808 of the Security Council of the UN approving the Statute of the ICTY, the Secretary General of the UN mentioned that almost all comments (on the draft Statute) he received requested that the Statute contain provisions relating to individual criminal responsibility of heads of state, government officials and all persons who acted within the framework of any official duty” and that “these requests referred to the precedents after World War II.”3 Thereby international criminal law, despite some attempts in the preparations for the adoption of the Rome Statute of the permanent International Criminal Court (ICC) which wanted to introduce the criminal responsibility of legal entities into international criminal law (albeit with the exclusion of the state and other public and non-profit organizations), accepted the traditional orientation of criminal law towards a physical person as the direct perpetrator of a criminal offence and possible co-perpetrators, instigators and aiders and abettors. 4 The individual criminal responsibility of a physical person for international criminal offences is also accepted in the practice of ad hoc international criminal courts (the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, the ICTY, and the International Tribunal for Rwanda, the ICTR). This is for example confirmed by the enacting terms of the second
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