Writing Separately

This chapter presents the author’s dissenting and concurring opinions. Throughout his nearly two decades on the Bench, the author exercised restraint in writing dissenting or separate opinions. He wrote such opinions when he felt it worthwhile to explain his own positions on important judicial questions, particularly on aspects of fairness. The chapter studies some of these opinions. The decisions examined concern hate speech, persecution, the principle of legality, due process and acts or threats of violence. The other decisions covered in the chapter deal with the reversal of burden of proof, fair trial rights and liability via the doctrine of joint criminal enterprise (JCE).

Complicity

This chapter addresses complicity liability. Complicity doctrine is notoriously difficult, both doctrinally and conceptually, in part because its underlying principles are themselves in tension. The pull of judgements about culpability must be reconciled with the demands of criminalization, and with the need protect the public. Frequently, the approach of the courts has been to focus on the defendant’s culpability. The better approach, it is argued, is to distinguish matters of culpability from those of ascriptive responsibility, and to focus also on the latter. Once this is done, it becomes easier to see the centrality of mens rea in ascribing responsibility for another’s acts. Quite apart from helping to show culpability, mens rea requirements can also mediate the constraints of criminalization, helping to balance the ex ante liberties of the accessory against the rights and interests of others; and ensuring those who do otherwise innocent actions have sufficient notice that their conduct is potentially criminal. The chapter closes by distinguishing between two major categories of participation: aiding and abetting, and joint criminal enterprise.

Complicity in the common law system: General characteristics

Complicity in the common law system has been subject of different practices in different countries for many years. It is unlike the practice in the majority of continental criminal justice systems. However, the court practice and principles established over time in certain countries have had greater effects than in some other countries using the same system. English common law practice is an example. It is the common law system with the strongest influence. Its practice regarding complicity was established a long time ago in 1861 Accessories and Abbettors Act that was the main law regulating this issue for over a hundred years. Besides very well-established actus rea elements, the main mens rea condition for complicity was a perpetrator's purpose or knowledge of the main criminal act. During 1985, the complicity concept was changed with the final judgment in the case "R v Jogee (Appellant) and Ruddock (Appellant) v The Queen (Respondent) (Jamaica)." The point of this reform was the "joint criminal enterprise" concept that was based on the "foreseeability standard" that made an accomplice responsible even for crime acts that were outside the "common plan or the purpose". After 30 years of implementation, the case of Privy Council Chang Wing-Siu v The Queen reset the complicity doctrine again and got it back to its traditional principles claiming "foreseeability standard" unconstitutional. Due to the importance of the common law system in Great Britain for other countries applying the same system, some of them, including Australia and Jordan, accepted the same complicity principles as Great Britain. Both of the mentioned systems adopted the "joint criminal enterprise" concept, but they developed it within their national criminal laws demanding extra responsibility claims for the accomplice. Unlike them, the US common law is characterized by other elements. Among them, the main ones are its inconsistency in terms of different practices at the state and at the federal level, as well as the lack of codification relating to many criminal law principles, including the complicity doctrine itself. These issues and problems have been a subject of interest of many scholars and practitioners in the common law system. The common denominator of their remarks regarding the problem is the need for a comprehensive reform of the current criminal law regulations and practices. Model Penal Code was a partially successful attempt of such needs but with limited effects. Taking in consideration all problems that exist regarding the complicity doctrine in the common law system, it seems further reforms and codifications of the complicity doctrine are the best way out of the current confusion where this doctrine seems to be stuck.

Joint criminal enterprise in the practice of international criminal tribunal for the former Yugoslavia

Joint criminal enterprise (JCE) is the institute first applied by the International criminal tribunal for the former Yugoslavia (ICTY) in the Tadić case, and thereafter further shaped through the practice of the ICTY despite the fact that JCE as a form of individual responsibility is not mentioned anywhere in the Statute of ICTY, neither implicitly nor explicitly. Although today there is no doubt that the Joint criminal enterprise is an institute of international criminal law, which was very often applied in the practice by both ICTY and other international ad hoc tribunals, the serious remarks to this institute do not abate. It's pointed out that this is an institute that "was created" to ensure the conviction of the defendants, which procedurally affects the prosecution, which is relieved of the burden of proving criminal responsibilities and the specific roles of each of the participants in the JCE. Besides that, at the time when this doctrine was formulated, it was not entirely clear whether it was a form of commission or a form of complicity. Only a couple of years later, in the Milutinović et al. case, the ICTY stands out that the liability based on the JCE doctrine, in fact, is a responsibility for the commission, which further compromised this doctrine. Questionless, the application of the Joint criminal enterprise doctrine in practice leads to serious violation of the fundamental principles of contemporary criminal law. With general review of the Joint criminal enterprise doctrine, in this piece of work, the author considers one case of conviction under the third (often referred to as "extended") form of JCE, in order to point out the key problems which this doctrine produces in practice.

Joint criminal enterprise – Bosnia and Herzegovina in Croatia’s great project

The International Criminal Tribunal for the former Yugoslavia (ICTY / ICTY) has indicted Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić. Indictees are charged with individual criminal responsibility (Article 7 (1) of the Statute) and criminal responsibility of a superior (Article 7 (3) of the Statute) for crimes against humanity: persecution on political, racial and religious grounds; killing; rape; deportation; inhumane acts; inhumane acts (forcible transfer); inhumane acts (conditions of detention); imprisonment, violations of the laws or customs of war: cruel treatment; cruel treatment (conditions of detention); illegal physical labor; reckless destruction of towns, settlements or villages, or devastation not justified by military necessity; destruction or willful damage to institutions dedicated to religion or education; looting of public and private property; unlawful attack on civilians (Mostar); unlawful terrorism of civilians (Mostar); cruel treatment (siege of Mostar), violations of the Geneva Conventions: willful deprivation of life; inhuman treatment (sexual abuse); unlawful deportation of civilians; illegal transfer of civilians; unlawful detention of civilians; inhuman treatment; inhuman treatment (conditions of detention); destruction of large-scale property that is not justified by military necessity, and was carried out illegally and recklessly; confiscation of property that is not justified by military necessity, and was performed illegally and ruthlessly. The trial began on April 26, 2006. The Trial Chamber's judgment of 29 May 2013 concluded that the conflict between the Croatian Army / Croatian Defense Council (HV / HVO) and the Army of the Republic of Bosnia and Herzegovina (ARBiH) was of an international character. The factual evidence unequivocally showed that HV forces fought together with HVO members against ARBiH, and that the Republic of Croatia exercised general control over the armed forces and civilian authorities of the Croatian Community/Croatian Republic (HZ/HR) of Herceg-Bosna. The Council also found that there was a joint criminal enterprise (JCE) with the ultimate goal of establishing a Croatian entity, partly within the 1939 Croatian Banovina, to enable the unification of the Croatian people. The ultimate goal was the annexation of this area to the territory of the Republic of Croatia in case of disintegration of the Republic of Bosnia and Herzegovina (which corresponded to great state claims), or alternatively to make this area an independent state within Bosnia and Herzegovina, closely connected with Croatia. As early as December 1991, members of the HZ Herceg-Bosna leadership (including Mate Boban, president of HZ/HR Herceg-Bosna) and Croatian leaders (including Franjo Tuđman, president of Croatia) assessed that in order to achieve the ultimate goal of establishing a Croatian entity it is necessary to change the national composition of the population in the areas that were calculated to be part of it. JCE participants knew that achieving this goal means removing the Bosniak population from the area of the so-called Herceg-Bosna and that it is in contradiction with the peace negotiations that were held in Geneva. Numerous crimes committed from January 1993 to April 1994 indicate an obvious pattern of behavior where the commission of a crime was the outcome of a plan prepared by JCE participants. The Trial Chamber found that all persons covered by the Indictment made a significant contribution to the implementation of the JCE and that their contribution indicated that they had the intent to pursue a common criminal purpose. Following consideration of the Appeals filed by the Prosecution and the Defense of the Convicts, the ICTY Appeals Chamber issued a final Judgment on 29 November 2017 against Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić, declaring them liable for the joint criminal enterprise in Bosnia and Herzegovina. This appellate judgment upheld the convictions handed down by the ICTY Trial Chamber in May 2013. In addition to participating in a joint criminal enterprise, the Appeals Chamber upheld responsibility for killings, persecution on political, racial and religious grounds, deportations, unlawful detention of civilians, forced labor, inhumane acts, inhumane treatment, unlawful and wanton destruction of large-scale property not justified by military necessity, destruction or willful damage to institutions dedicated to religion or education, unlawful attacks on civilians and unlawful terrorism of civilians, and individually for rape and sexual abuse. The verdict confirmed that the participants from Croatia in the joint criminal enterprise were Franjo Tudman, Janko Bobetko and Gojko Šušak. From the presented evidence it was concluded that the leaders of HZ/RHB, including Mato Boban, and the leaders of the Republic of Croatia, including Franjo Tudjman, in December 1991 assessed that the long-term political goal was to achieve the unification of the Croatian people entities, within the borders of the Banovina of Croatia from 1939, it is necessary to carry out “ethnic cleansing” in the territories that were claimed to belong to the HZ/RHB. Evidence confirms that a joint criminal enterprise has been established to achieve the political goal. In this context, it was established that Franjo Tudjman advocated the division of Bosnia and Herzegovina between Croatia and Serbia by annexing part of Bosnia and Herzegovina to Croatia or, if this was not possible, by establishing an autonomous Croatian territory that would be closely connected with Croatia. Prlić, Stojić, Praljak, Petković, Ćorić, and Pušić were convicted of crimes against humanity, violations of the laws or customs of war and grave breaches of the Geneva Conventions, specifically murder, willful deprivation of life, persecution on political, racial and religious grounds, deportation, unlawful detention of civilians, forced labor, inhumane acts, inhuman treatment, unlawful and wanton destruction of large-scale property not justified by military necessity, looting and confiscation of public and private property under the third category of liability for participation in JCE destruction or intentional infliction damage to institutions dedicated to religion or education, unlawful attacks on civilians and unlawful terrorism of civilians. In addition, Prlić, Stojić, Petković and Ćorić were convicted of rape and inhuman treatment (sexual abuse). Ćorić was additionally convicted for several crimes for which he is responsible as a superior.

Solving Kosovo’s problems becomes harder without Thaci

Significance Thaci resigned ahead of extradition to The Hague, following indictment for war crimes, including murder and torture, and participation in a joint criminal enterprise. The charges arise from Thaci’s role as a commander in the Kosovo Liberation Army (UCK). Three other high-profile political figures were also indicted and transferred to The Hague. Impacts The prospect of a crisis in Kosovo will force the incoming Biden administration to maintain its predecessor’s focus on the Balkans. The crisis will handicap a government battling a coronavirus second wave, which has already forced the country into partial lockdown. Mounting obstacles to a negotiated solution to Kosovo’s status increase the risk of a chaotic outcome, involving other parts of the Balkans.

IV.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM SELECTED CASE LAW

Prosecutor v. Vojislav Šešelj, Case No. MICT-16-99-A, Appeals Chamber, Judgement, 11 April 2018 Contents ** I. PROCEDURAL BACKGROUND II. STANDARDS OF APPELLATE REVIEW III. MERITS A. PROCEDURAL FAIRNESS B. VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR C. CRIMES AGAINST HUMANITY D. JOINT CRIMINAL ENTERPRISE...

The Doctrine of “Joint Criminal Enterprise”: Criminal Liability of the Military-Political Leadership of the Armed Conflict Opposing Party for Committing War Crimes

The article analyzes the mechanisms of bringing the military and political leadership of the opposing party of the armed conflict to criminal liability through the doctrine of "joint criminal enterprise", which is used in International criminal law, considering that the acts committed by this category of individuals, as a rule, are subject to investigation by international criminal tribunals on the basis of definitions developed by international practice. The analysis carried out by the Author also enables to propose scientifically substantiated recommendations on the qualification of the acts conducted by the military and political leadership of the opposing party, which form corpus delicti of various military and international crimes according to the rules of complicity provided for by the national legislation of the Republic of Armenia.