System Criminality in International Law

Introduction

The joint criminal enterprise doctrine (hereafter JCE) has made quite an impressive appearance on the stage of the International Criminal Tribunal for the Former Yugoslavia. Raised from the ashes of Nuremberg conspiracy law, the doctrine has been enthusiastically embraced by the Tribunal, which has polished the doctrine in order both to meet the principles of criminal law and to face the complexities of international crimes.

The gist of the doctrine is to nail persons who joined forces for a Common purpose to commit (international) crimes and contributed to this aim, although they did not physically perpetrate those crimes. The doctrine connotes group responsibility. However, mere membership does not suffice to incur criminal responsibility, as the ICTY has emphasized correctly.

In the Tadic case, the Appeals Chamber of the ICTY has tried to refine and diversify the doctrine, identifying no fewer than three versions. Whereas the requirements as to the actus reus are basically the same a plurality of persons, membership of this group and an unarticulated ‘contribution’ they differ in the mens rea. The first, relatively straightforward and unproblematic form (JCE (I)) implies that all group members share the common intent to commit certain crimes which actually materialize. The second form (JCE (II)), which has been called the ‘systemic variant’, covers participation in a repressive system in the context of which multiple crimes are committed on a structural basis and has been applied in the so-called ‘concentration camp’ cases.