Joint Criminal Enterprise

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The main legal doctrine used to prosecute Serbian political and military leaders at the International Criminal Tribunal for the Former Yugoslavia (ICTY) for crimes, including genocide, allegedly committed in the 1991-95 wars in republics seceding from Yugoslavia. This doctrine has been credited to Croatian-American law professor John Cencich, who served as a war crimes investigator in the Balkans. Joint Criminal Enterprise is described as "a revolutionary strategy for prosecuting war criminals" based on the principle of accomplice liability or the common purpose doctrine. "The principle holds members of a group responsible for each others' criminal acts. If three people commit a bank robbery and one fatally shoots a person in the process, for example, the law considers all guilty of murder." [1]

[edit] The ICTY's use of the Joint Criminal Enterprise Doctrine

The ICTY has maintained through a series of indictments of Serbian political and military leaders that they participated in a joint criminal enterprise. During this enterprise, the Prosecutors argue, crimes in the form of war atrocities such as the shooting of Srebrenica prisoners of war took place. That particular crime had previously, in the Radislav Kristic judgment, been ruled to be genocide. Therefore, these leaders must take responsibility for these crimes, including genocide, committed by those participating in the execution of this conspiracy. The indictments maintain that that the plotters' criminal goal was the creation of Greater Serbia from the disintegrating Yugoslavia. Common purpose doctrine dictates that the end in and of itself must be criminal. For instance, the bank robbery mentioned above is such a crime, during the commission of which other more serious crimes could be committed for which the whole group is blamed; the creation of Greater Serbia is not listed as a crime anywhere. Indictments therefore have suggested that the real purpose was ethnic cleansing, that this was the criminal act that the conspirators were plotting to commit. So far, ICTY prosecutors have not proven that the alleged mastermind of the joint criminal enterprise, Slobodan Milosevic, was motived by a desire to commit ethnic cleansing, and as a result of his death, will never be able to rule conclusively on that issue. Moreover, as Milosevic served as Serbia's president throughout the period in question and no ethnic cleansing took place there despite the existence of a significant territory inhabited by Bosniaks, the claim that he was motivated by a desire to commit ethnic cleansing is open to question.

The doctrine of Joint Criminal Enterprise, through the uncontested trial of Milan Babic, has succeeded in having the ICTY declare officially that all Serbian activities during the wars of Yugoslav Succession were part of a criminal conspiracy. That such a sweeping judgment was made by the tribunal without any contest shows the weakness of this doctrine in the administration of justice, that it is a doctrine better served for political courts that serve political ends.

Indeed the purpose behind the adoption of the joint criminal enterprise doctrine was to find a way to prosecute and convict Slobodan Milosevic of genocide in Bosnia-Herzegovina. As he did not command the forces either of the Yugoslav People's Army blamed for crimes in Vukovar, nor of the Army of Republika Srpska blamed for shelling Sarajevo and for the Srebrenica massacre, he could not be blamed for these crimes under the doctrine of command responsibility, though the Prosecution attempted to prove that he had arranged for a secret army to be created, led by Franko Simatovic, to commit crimes directly under Milosevic's command and to coordinate the often feuding co-conspirators. This secret army, described as Red Berets, was, the Prosecution claimed, the same Special Operations Unit, JSO, that was founded in 1996 serving under the Serbian Interior Ministry.

Since the original use of the Joint Criminal Enterprise doctrine, the ICTY, in a bid to appear consistent, has characterised cases involving crimes committed by non-Serbs as Joint Criminal Enterprises. For instance, Croatian General Ante Gotovina's amended indictment accuses him of participating in a Joint Criminal Enterprise featuring none other than Croatian President Franjo Tudjman himself. The purpose of the conspiracy, the indictment states, was "the forcible and permanent removal of the Serb population from the Krajina region"[2]

[edit] Defences against the Joint Criminal Enterprise charge

The main Joint Criminal Enterprise alleged by the ICTY, the alleged Serbian plan to create Greater Serbia, has been contested in several cases. For instance, Slobodan Milosevic in his defence, as have others such as Vojislav Seselj, maintained instead that Serb leaders reacted to the threatening activities of separatists from across the former Yugoslavia, and that in each case the people who participated in the war had good reasons to do so, not requiring guidance from Belgrade. For instance, Seselj wanted to defend Serbs in the Yugoslav republic of Croatia, so he helped recruit soldiers to fight in the armies opposing the Croatian militias. They joined local Serbs who were terrified by the policies of Franjo Tudjman and the terror that he unleashed. Seselj too had his Greater Serbia idea which he hoped to promote through his recruitment drive. At the Milosevic trial. Seselj maintained that he was the only Serbian politician to advocate Greater Serbia. Prosecutor Geoffrey Nice was forced to admit to this, which caused the judges to worry openly if the Prosecution's case risked being fatally undermined.[3]

[edit] Critics of the Joint Criminal Enterprise Doctrine

John Laughland, author of Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, wrote about the Joint Criminal Enterprise Doctrine in 2006. He wrote that

the International Criminal Tribunal for the former Yugoslavia...has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’ It uses this concept, which is so contentious that it is unconstitutional in many jurisdictions, in order to convict people of crimes when even the Tribunal accepts that they did not, in fact, commit them or that the proof is lacking to show that they did.[4]

He argues thus that "international tribunals have abolished the very thing which criminal trials are supposed to be about. If you can be convicted of a crime as a primary perpetrator for something which you neither committed nor intended to commit, and if mens rea can be ‘established’ by judicial ruling," this is "introducing into the heart of their systems measures which are the very hallmark of dictatorships."[5]

The chapter in Laughland's book Travesty on the subject of the Joint Criminal Enterprise doctrine is titled "Just convict everyone."[6]