September 16, 2005

1. POLITICAL LAW

Instead of shying away from the uneasy relationship between politics and law, some commentators have even rejoiced in the apparent tension between them and revelled in the challenges that it poses. “Political law,” a term coined by Canadian parliamentary counsel Greg Tardi, is to law what chaos theory was to natural sciences.

Criticizing the ICTY is not new. Indeed, the more criticism it attracts the more legitimate the tribunal must seem to it devotees, because criticism can be characterized as a hallmark of democratic society that will only help to consolidate the legitimacy of the tribunal. Instead of extolling its virtues and then getting entangled in the attempt to deny them, one only has to look at the tribunal from the opposite angle and pose to oneself the following question: if one could imagine such a thing as a dysfunctional tribunal, how would it differ from the ICTY? Joint criminal enterprise is a case in point.

No-one, not even its supporters, would deny that the ICTY is a political instrument. With its political agenda in view, it is difficult to suppose that the tribunal is primarily about justice? Yet, that is what is routinely done. How the supporters of the tribunal manage to reconcile the overtly political tone of the tribunal and the interests of the justice is one of the biggest, deepest, and darkest mysteries of our era.

To give credit where credit is due, politicking is what the tribunal does very well. The International Criminal Tribunal for Yugoslavia started out frying small fish and ended up with big ones. Once low-ranking soldiers and their superiors had been sentenced, the tribunal could target political decision-makers, who bore ultimate responsibility.  Thanks to the recyclability of previous decisions, one did not have to rehearse all the evidence against the high-level leaders, because all that was needed was a reference to a previous judgment. It was still a slow and painstaking process and involved many footnotes, but it worked fairly well.

Paradoxically, to respond to its political vocation, the tribunal has to give an impression of justice. The statute of the ICTY mentions justice no less than five times, and the Rules of Procedure and Evidence mention it no less than twenty-eight times (at last count, before the rules are changed for the thirty-sixth time). Ironically, the interests of justice enshrined in both instruments refer mostly to the interests of the prosecution.

One might deny that that the interests of justice have been used to curtail the rights of defense. Unfortunately, some statements by public figures make it hard to suggest that “interests of justice” are amenable to the interests of the defense. Professor Michael Scharf did not hide the fact that the tribunal was designed to counteract public enemy number one, President Slobodan Milosevic, who is now one of the defendants:

In creating the Yugoslavia tribunal statute, the U.N. Security Council set three objectives: first, to educate the Serbian people, who were long misled by Milosevic’s propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the ways in which the Milosevic regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia’s newly elected leaders to distance themselves from the repressive policies of the past.

If Scharf speaks for the wider legal community, giving Milosevic a fair trial is one of the last things on the minds of legal experts. You can not educate people, if the outcome of the trial is not known before hand, and in a fair trial it is not then known. Those commentators priding who priced legal sophistication spoke with voices like of those others who had none.

The educational value of such a predestined exercise is dubious. If the newly-elected leaders learn anything from rigged trials, it is how to exchange the repressive policies of the past for new ones. The political catharsis that this exercise was supposed to bring about was equally dubious. The mere fact that the education is staged in the form of a trial (by bringing the accused “to justice”) does not necessarily bring one much closer to “political catharsis”.

Scharf may be able to keep legal and political agendas apart in his own mind, but it is hard to imagine how prosecuting political figures could fail to have political consequences. It is not unlikely that political leaders are being prosecuted because of the political consequences that the process has. Indeed, it is likely.

There was one remaining challenge with which the ICTY prosecution was faced. Political figures cannot be “brought to justice” unless their political responsibility is translated into criminal culpability. According to Scharf, the second objective of the tribunal was to disclose the ways in which the Milosevic regime induced ordinary Serbs to commit atrocities. The word “induce” does not sound particularly legal. It is even more ambiguous than “aiding and abetting in the planning, preparation or execution of a crime”, which is how Art. 7-1 of the ICTY Statute puts it.

The solution was more or less straighforward: semantics. In the Tadic case, which was the first case to come before the tribunal, a curious form of criminal responsibility was introduced to the Appeals process, namely joint criminal responsibility. It was curious not only because the Statute does not recognize collective responsibility as such (the heading of Art. 7 of the Statute only mentions individual criminal responsibility) but also because it does not seem logical that criminal responsibility could be individual and “joint” at the same time. The tribunal subsumed joint criminal responsibility under the heading of individual criminality, and purported not to see any discrepancy in dividing individual criminal responsibility into collective and other forms.

Of course, the ICTY would probably not resort to such solutions if it could have solved the terminological problem in any other way. Indeed, when Milosevic was first indicted, the prosecution hung its case on command responsibility (Art 7-3 of the Statute). Unlike joint criminal responsibility, command responsibility had the advantage of being expressly mentioned in the Statute. That was a mixed blessing because it restricts the prosecution’s room to manoeuvre, and thus its usefulness for prosecutorial purposes.

Art. 7-3 of the Statute provides:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

The sticking points are apparent: the words “subordinate” and “superior” are specific. The expression “knew or had reason to know that the subordinate was about to commit” implies that the superior had to have known the subordinate himself (singular) before the crime was (about to be) committed. The relevant political leaders did not have subordinates in that sense. No matter how painstakingly the prosecutors had built the case against the politicians over the years, the chain leading up to the politicians had to break down at some point under its own weight.

The more concrete danger was that the superior is relieved of criminal responsibility if he had taken necessary and reasonable measures to prevent crimes or to punish the perpetrators. He did not even have to do it himself, because at the macrolevel it was the judiciary that punishes the perpetrators, not the politicians, even if the tribunal tries to blur the distinction between those two arms of the state.

In Milosevic’s case that dilemma of the prosecution was very real, because Serbia did punish the perpetrators. As Serbian authorities have reiterated, Serbian military tribunals punished hundreds of war criminals even while NATO kept bombing it in 1999. That fact does not seem to have been refuted.

The tribunal found the excuse it needed to undercut Yugoslav case law when the Supreme Court of Yugoslavia ruled that the extradition (or transfer) of President Milosevic was illegal. However, to save itself from further embarrassment, it revived a concept that had been used in the Tadic case: joint criminal enterprise. By then, the term had come to mean something other than what was originally intended. Initially, it was applied to those same superiors as in Article 7-3 of the Statute, but it ended up referring to the political decision-makers.

2. JOINT CRIMINAL ENTERPRISE IN THE TADIC CASE

The concept of “joint criminal enterprise” was consolidated in the appellate judgment in Tadic on 15 July 1999.  Before the concept could be used by the tribunal, the court had to determine whether the participation in “joint criminal enterprise” (or “common criminal purpose”) fell within the ambit of Art. 7(1) of the Statute (para. 187). Predictably, the Appeals Chamber concluded that it did, although it did admit in para.194: “[T]he Tribunal’s Statute does not specify (either expressly or by implication) the objective and subjective elements (actus reus and mens rea) of this category of collective criminality.”

That shortcoming would seem to violate such as a basic principle of criminal law as the principle of legality or the nulla poena principle. In most legal systems the principle of legality or the nulla poena principle requires a legislative basis for criminal responsibility. Hence the haste with which the Appeals Chamber concluded that joint criminal enterprise did fall under the Statute.

The reasoning was not flawless, and the Chamber had to resort to “customary international law” to justify it. The Appeals Chamber then went beyond seeking “guidance” in customary law, which has been seen as the role of customary role in international criminal tribunals. Rather, customary law filled a void in the Statute. Arguably, that method of transcending the Statute contradicted customary law itself because it was contrary to the principle of legality.

One might even suggest that the ICTY Statute was in conflict with “customary international law”. One of the peremptory norms of international law used to be state sovereignty, which meant that a state could be bound only by its own expressed will. That principle was watered down by the introduction of contradicting peremptory norms, which were allowed to undermine state sovereignty.

Yugoslavia was required to cooperate with the tribunal, even if it refused to recognize the legitimacy or jurisdiction of the tribunal. Even if that requirement was contrary to the principle of state sovereignty and a whole set of other peremptory norms, the requirement was couched in terms of peremptory norms. The underlying argument is that states were bound by peremptory norms and have no freedom to define them to suit themselves.

The tribunal defined the content of “customary international law” by citing the case law of post-WWII military tribunals. It divided “relevant” case law into three groups in para. 195, although it admitted that the second group was irrelevant in the immediate context. The second group referred to the law that pertained to the German concentration camps in para. 202 – 203, but the Appeals Chamber admitted in para. 203 that this category “is not applicable to the facts of the present case” and is “really a variant of the first category”.

It was the first category that was initially the most important one. The oft-quoted paragraph 220 of the judgment summarized the first category as follows: “cases of co-perpetration, where all participants in the common design possess the same criminal intent to commit a crime”. In the Krnojelac judgment of 15 March 2002, that category, together with the concentration camp category, was called the basic form of “joint criminal enterprise” (para. 78). In contrast, the third category was called the extended form of “joint criminal enterprise” (para. 86).

That third category mentioned in the Tadic appellate judgment was the extended form of “joint criminal enterprise”. Extended as it was, it was also the most problematic law from a defendant’s viewpoint. The extended form of joint criminal enterprise entailed that the alleged act was outside a common design but was nevertheless “a natural and foreseeable consequence of the effecting of that common purpose” (para. 204).

The Appeals Chamber found support for that flexibility in the old case law of a British military court (Essen Lynching) and an American military court (Borkum Island) (para. 205). It used those cases to formulate one criteria of mens rea required in the extended form of “joint criminal enterprise”: sharing the same criminal intent. (para. 211)

The Appeals Chamber in Tadic went on to cite judgments that Italian courts handed down after World War II. The Chamber quoted those cases because they provided the necessary flexibility for defining mens rea. In D'Ottavio et al., the Italian Court of Cassation spoke of “psychological causality” and concluded that the participants “foresaw the possible commission of a different crime” (para. 215). In Mannelli, the Italian Court of Cassation spoke of one crime being “the logical and predictable development” of another (para. 218).

The Appeals Chamber came back to the classic trichotomy in para. 220 of Tadic. This time it dealt with the third category in greater detail, especially in relation to the mens rea requirement. Two requirements were set for that aspect of the third category. The first was “the intention to take part in a joint criminal enterprise and to further … the criminal purpose of that enterprise”. The second requirement, which was modeled on the Italian case law sketched above, was not really a “requirement”, because it merely extended mens rea beyond the intended consequences of the “joint criminal enterprise” to its foreseeable outcomes: “the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose”. Those two requirements were mutually exclusive in that common criminal purpose was presupposed by the first requirement and excluded by the second one.

The Appeals Chamber then went on to quote two treaties, which allegedly embodied the idea of a “joint criminal enterprise”. The first pact was the International Convention for the Suppression of Terrorist Bombing, which was adopted by consensus by the UN General Assembly on 15 December 1997. The second treaty was the Statute of the International Criminal Court, which was adopted on 17 July 1998.

In a string of malapropisms, the Appeals Chamber portrayed its discussion as an overview of “customary international law,” as it said in para. 194. Although the Appeals Chamber did not go as far so to say that international treaties constituted customary law, which would be false, it stated in a roundabout way that “[c]ustomary rules on this matter are discernible on the basis of various elements: chiefly case law and a few instances of international legislation”.

Once international treaties came into the picture, the tribunal found itself on a slippery slope. The approach of the tribunal was unfortunate, because by introducing treaty law under the guise of international customary law it distanced itself from its own statute, which should have been the only piece of legislation that could guide the tribunal.

In particular, Yugoslavia had not signed the two treaties in issue during the relevant period. In fact, no state had done so. The relevant period, as set out in para. 3.5 of the second amended Tadic indictment, was the time between “about 23 May and about 31 December 1992”.  The sentencing judgment was dated 14 July 1997. At that point, no state had signed the two treaties, which were adopted a few months later.

The Appeals Chamber then referred to the Rome Statute of the International Criminal Court as part of “customary international law”. After exhibiting its retrospective prowess, the Appeals Chamber kept silent on the fact that the Rome Statute prohibits retroactive application (Art. 24). Not only did the relevant period in 1992 in the Tadic case precede the Rome Statute, but it also preceded the ICTY Statute.

The Rome Statute also prohibits the analogous interpretation to which the ICTY is no stranger, in Art. 23. The Appeals Chamber of the ICTY acted contrary to that prohibition by creative interpretation of joint criminal enterprise. The Chamber in the Tadic case made unprecedented reference to Art. 25(3)(d) of the Rome Statute, which mentions “a group of persons acting with a common purpose”. However, even if that article might accommodate the basic form of “joint criminal enterprise”, it does not support the extended form of “joint criminal enterprise”, because that article does not mention foreseeability or any related concepts.

The Appeals Chamber touched finally on national legislation, apparently still as part of customary international law. Surprisingly, the Chamber allowed that national legislation did not prove the prevalence of “joint criminal enterprise” in local law (para. 225). However, as we shall see later, the tribunal quoted Yugoslav law in support of the existence of joint criminal enterprise in the Ojdanic case.

3. JOINT CRIMINAL ENTERPRISE IN THE TRIAL CHAMBERS
3.1. TRIAL CHAMBER I

When confronted with case law like mentioned in the last section of the this paper, even the Trial Chambers did not reach consensus on the meaning of the “joint criminal enterprise”. In the Krnojelac judgment (para. 76), Trial Chamber II dismissed the distinction drawn by Trial Chamber I in the Kvocka judgment  between a co-perpetrator and an aider and abetter as irrelevant to “joint criminal enterprise”. Trial Chamber I had held that perpetration and aiding or abetting may be different ways of contributing to the “joint criminal enterprise”. In the Kvocka judgement it stated:

The Trial Chamber also considers that it is possible to co-perpetrate and aid or abet a joint criminal enterprise, depending primarily on whether the level of participation rises to that of sharing the intent of the criminal enterprise (para. 249).

and

In the Trial Chamber’s view, a co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and performs an act or omission in furtherance of the enterprise; an aider or abettor of the joint criminal enterprise need only be aware that his or her contribution is assisting or facilitating a crime committed by the joint criminal enterprise. (para. 284)

Disagreement between the two Trial Chambers is a sign of the vulnerability of the concept of joint criminal enterprise. Those definitions were, moreover, not quite as irrelevant as Trial Chamber II would have wished. Extending “joint criminal enterprise” to encompass both perpetration and aiding or abetting, as was done in Trial Chamber I, had far-reaching practical implications. It was echoed in the wording of a number of indictments: Paragraph 4 of the amended consolidated indictment of Krajisnik and Plavsic stated that the accused could participate in a “joint criminal enterprise” as a co-perpetrator or as an aider or abettor.  That allegation suggested that a “joint criminal enterprise” could not be reduced to perpetration or to aiding and abetting. Division of the “joint criminal enterprise” into co-perpetration and aiding or abetting was effected in para. 4 of the Babic indictment.

3.2. TRIAL CHAMBER II

Trial Chamber II dismissed those subtleties for fear that an aider and abettor would be punished more lightly than a perpetrator. In the Krnojelac judgment, Trial Chamber II gave an example: “The participant who plans a mass destruction of life, and who orders others to carry out that plan, could well receive a greater sentence than the many functionaries who between them carry out the actual killing” (para. 77).

One can see what Trial Chamber II was trying to do. It was more loyal to the original Tadic Appeals judgment than was Trial Chamber I. In the Tadic judgment, the “joint criminal enterprise” (para. 220) and “aiding and abetting” (para. 221ff.) were kept separate. In para. 229 of the Tadic appellate judgment, the Appeals Chamber asserted the need to keep them separate: “…it is now appropriate to distinguish between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting.”

The main difference was that the mens rea requirements of the "joint criminal enterprise" were more stringent than in the case of aiding and abetting, though it would seem that aiding and abetting required a greater presence of mind because “the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal” (para. 229 (iv) of the Tadic Appeals judgment). In the extended form of “joint criminal enterprise,” the mens rea requirement was less stringent.

Those niceties must have mattered to Trial Chamber II for the following reason. If the offenders had to be categorized, then even the most flexible category, that of aiding and abetting, as defined in the Tadic appellate judgment, might have proved too stringent for the prosecution. The desire to give the prosecution more latitude was evidenced when Trial Chamber II described different degrees of participation in a “joint criminal enterprise”. The third degree, in particular, seemed very remote from the idea of individual criminal responsibility. According to para. 81 point iii of the Krnojelac judgment, a person might participate in a joint criminal enterprise by acting in furtherance of a particular system in which the crime was committed by reason of the accused’s position of authority or function and with knowledge of the nature of that system and intent to further that system. That definition seemed to include even those crimes that were unforeseeable and to implicate the accused on account of his political position. Presumably, that laxity was called for to accommodate the high-profile cases with which the ICTY was dealing. Indeed, the judgment was handed down as recently as March 2002.

4. CHALLENGE IN OJDANIC

Those differences between the Trial Chambers shifted the problem to the Appeals Chamber. A milestone was the decision of the Appeals Chamber on Dragoljub Ojdanic's motion challenging jurisprudence - joint criminal enterprise, dated 21 May, 2003.  In its motion, the defense attacked as many aspects of the doctrine of “joint criminal enterprise” as it could.

In its decision, the Appeals Chamber stuck to the Tadic jurisprudence, though it only had to refine its own case law to override Ojdanic. In its opinion, the main point of the Tadic Appeals judgment was that “joint criminal responsibility was provided for in the Statute of the Tribunal and that it existed under customary international law at the relevant time”. That conclusion was what the defense was trying to contest (para. 18). Indeed, the Appeals Chamber’s holding seems self-contradictory. Why would the Tadic Appeals judgment have to decree that “joint criminal responsibility was provided for in the Statute”, if it was already in the Statute? And, if it was in the Statute, why would the Appeals Chamber in the Ojdanic case have to refer to the Appeals judgment in the Tadic case to find that it was in the Statute?

But more to the point, the Tadic Appeals judgment did not conclude that “joint criminal enterprise” was provided for in the Statute. On the contrary, it stated in para. 194: “However, the Tribunal's Statute does not specify (either expressly or by implication) the objective and subjective elements (actus reus and mens rea) of this category of collective criminality”. If the Statute did not describe any elements of “joint criminal enterprise” either expressly or by implication, then the conclusion must be that “joint criminal enterprise” was not provided for in the Statute.

That dilemma unresolved, the Appeals Chamber in Ojdanic then turned to customary international law: “To identify these elements one must turn to customary international law.” But customary international law says nothing about individual criminal responsibility.

In a revealing non sequitur, the Appeals Chamber then asserted so much certainty about its reasoning that it did not have to entertain any queries about it. Therefore, the principle of in dubio pro reo, which the defense had invoked, did not apply because there was no doubt (para. 27-28)! It did not seem to matter that the Appeals Chamber did not adhere to the restrictive interpretation that was its guiding principle in another context: “Unless it is satisfied that a principle of liability is included in the Statute, the Tribunal would not exercise its jurisdiction on the basis of that principle.” (para. 22). Restrictive interpretation has generally been considered to be the norm in criminal law.

The Appeals Chamber then tried to delineate “joint criminal enterprise” in relation to other similar concepts. Its dilemma was twofold. If the concept was not related to anything in the ICTY Statute, then the tribunal had taken on the role of a lawgiver, which was not how it wanted itself to be perceived. If, on the other hand, another term in the Statute was synonymous with joint criminal enterprise, then that term had to be stretched beyond its meaning to cover “joint criminal enterprise”. Was “joint criminal enterprise” a crime in itself or a form of liability? If it was a crime, then the principle of nullum crimen sine lege or the principle of legality applied and was, in the first option, infringed upon.

The Appeals Chamber chose to equate “joint criminal responsibility” with “commission” to force itself to comply with Art. 7(1) of the Statute. All the niceties concerning co-perpetration and complicity were laft aside, just as in the Krnojelac judgment where the Appeals Chamber adhered to the view that aiding and abetting was separate from “joint criminal enterprise” (para. 20). That allowed “joint criminal enterprise” to overlap with “commission” in Art. 7(1) of the Statute.

If joint enterprise were the same as commission, it would be incongruous that the lists of participants in a “joint criminal enterprise” did not always include persons who were involved in the commission of the crime. That would seem to be the minimum requirement for any “joint criminal enterprise” to exist as an extension of “commission”. Identifying the perpetrators simply as “others known and unknown,” as in a number of indictments, creates a gap between the “joint criminal enterprise” and the actual crimes. In the beginning, i.e. in the Tadic judgment, the accused was in contact with those who carried out the crime (para. 192). It was not easy to transfer that case law to the political sphere. Thus, there was a break between the principal offender and others. It was a legal fiction to claim that those others “committed” the crime.

The Appeals Chamber also dealt with two other related concepts: conspiracy and membership in a criminal organization. It would seem natural to equate “joint criminal enterprise” with either of them. The defense pointed out the problems posed by “joint criminal enterprise” in relation to both of them. First, conspiracy was not just another form of liability but a crime in its own right, and as such it should have been mentioned in the Statute. The Appeals Chamber implicitly conceded that point by holding that “joint criminal enterprise” and conspiracy were two different things (para. 26). Secondly, the Appeals Chamber concluded that “joint criminal enterprise” did not criminalize mere conspiracy or membership but dealt with the fact that certain other crimes were committed as a collective effort (para. 23, 26).

On the other hand, the ICTY Statute mentions “complicity” in connection with genocide in Art. 4(3)(e). That should explain why the tribunal was reluctant to treat “joint criminal enterprise” as a form of complicity: If complicity was mentioned expressly in connection with genocide, the conclusion a contrario (and in line with restrictive interpretation) would have been that complicity was not provided for in the Statute in regard to other crimes than genocide.

The Appeals Chamber cited Art. 6(1 ) of the Nuremberg Charter, which mentioned not only conspiracy and membership but also committing crimes either as individuals or as members of organizations (footnote 10 in para. 25). The Appeals Chamber held that “joint criminal enterprise” should be understood as “committing crimes either as individuals or as members of organization”. In reasoning that was similar to that put forward earlier by Trial Chamber I, the Appeals Chamber seemed to suggest that treating “joint criminal enterprise” as a generic term kept it separate from conspiracy and membership.

The Appeals Chamber’s position means that as soon as conspiracy or membership leads to actual crimes, the conspiracy or membership are adsorbed by those crimes. That view, however, deviates from the above-mentioned Article in the Nuremberg Charter: “Leaders, 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.”

Bearing in mind that Ojdanic and others were initially charged in the Kosovo indictment together with Milosevic on the basis of their superior responsibility (i.e. command responsibility), it would be hard to deny the parallels between the situation envisaged in the Nuremberg Charter and the initial Kosovo indictment of Milosevic and others. From Ojdanic´s viewpoint, the name and the legal basis of the charges had been changed, while the alleged conduct remained the same.

Even if it somehow managed to avoid the conclusion that “joint criminal enterprise” meant conspiracy, the Appeals Chamber came very close to admitting that “joint criminal enterprise” was similar to an organization. In an uncharacteristic move to support its argument by citing Yugoslav law, it quoted Article 26 of the Criminal Code of the Socialist Federal Republic of Yugoslavia, which it called “strikingly similar” to a “joint criminal enterprise” (para. 40). However, that Article criminalized “creating or making use of an organization, gang, cabal, group or any other association for the purpose of committing criminal acts…”. It did not seem to matter to the tribunal that “cabal” meant conspiracy.

Even if the tribunal had admitted in the Tadic Appeals case that national legislation did not prove the prevalence of “joint criminal enterprise” in local law (para. 225), the Appeals Chamber was keen to find that the concept of a “joint criminal enterprise” did exist in Yugoslav law in the relevant period, because that would have satisfied the exigencies of the principle of legality. In other words, a “joint criminal enterprise” “was sufficiently foreseeable” and “sufficiently accessible at the relevant time” (para. 38). That status was required by the principle of legality. Even if the Appeals Chamber could hold a contrario, as it did in footnote 98, that this Article did not criminalize membership, it did criminalize organization. That argument collided with para. 52 of the Secretary-General’s Report, which the Appeals Chamber quoted in para. 25. The Secretary-General’s report rejected the idea that “a juridical person, such as an association or organization, may be considered criminal as such”.

5. CONCLUSION

Where command responsibility has not been enough to prosecute political figures, the ICTY has resorted to the multifarious concept of joint criminal enterprise. When joint criminal enterprise is replaced with its more accurate equivalent “joint criminal responsibility,” it is easy to see why the tribunal has been at pains to square it with Statute of the ICTY. The first problem is to reconcile the idea of “joint” with the individual criminal responsibility, which is explicitly mentioned in the Statute. The second problem is the temptation to identify joint responsibility with more straightforward terms like aiding and abetting, conspiracy, complicity and the like, but the tribunal has, with the exception of some momentary lapses in Trial Chamber I, made an effort to keep those latter concepts separate from joint criminal enterprise. The reason is that “aiding and abetting” and other terms are either mentioned in the Statute, unlike joint criminal enterprise, or, on the contrary, have been excluded from it, as in the case of conspiracy. Inclusion in the Statute raises the evidentiary threshold, while exclusion from the Statute makes a concept difficult to uphold in the tribunal.

Joint criminal enterprise is not thus handicapped. As the tribunal would have it, joint criminal enterprise is neither included in the Statute nor excluded from it. Especially in its so-called extended form, joint criminal enterprise provides a good tool for a political tribunal like the ICTY to prosecute politicians. Due to the practical value of joint criminal enterprise, the principle of legality is a minor impediment, although it remains a problem that the tribunal has tried to palliate.

Joint criminal enterprise does not require that political figures furthered in any way the crimes committed by other people. It only requires “the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose”. In other words, even if there was no common criminal purpose, the accused can still be criminally responsible for somebody else’s actions, regardless of whether he knew about them, provided the person can somehow be shown to belong to the same group, which is normally defined along ethnic lines in the practice of the ICTY. As Scharf has said, the tribunal was designed to educate the Serbs, but there is room for doubt that it does so “in the interests of justice”.