Three categories of JCE

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.

The Trial Chamber found that the Appellant was liable under JCE III for murder as a crime against humanity. At the same time, the Trial Chamber, without providing any further reasons, held that “in the circumstances of [the] killings arising from a JCE to Forcibly Remove – encompassing forcible transfer as other inhumane acts constituting a crime against humanity – his criminal responsibility is for murder as a crime against humanity and not as a war crime”. See para. 1710. The Appeals Chamber considered that the Trial Chamber’s scant reasoning as to why it acquitted the Appellant for war crimes suggests that the Trial Chamber required that the category of the JCE III crime must match that of the JCE I crime. See para. 1713.

1713. […] [T]he jurisprudence of the Tribunal does not require the category of the JCE I crime and the JCE III crime to match.[1] […]

[1]           See, e.g., Martić Appeal Judgement, para. 183, referring to Martić Trial Judgement, paras 454-455.

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Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

463. In the jurisprudence of the ICTY three categories of joint criminal enterprise have been identified as having the status of customary international law.[1] The first category is a “basic” form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention.[2] An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill. This form of joint criminal enterprise is the only one relevant to the present case and will be the focus thereafter.[3]

464. The second category is a “systemic” form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment.[4] An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise.

465. The third category is an “extended” form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose.[5] An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians.

466. For joint criminal enterprise liability to arise an accused must act with a number of other persons. They need not be organised in a military, political or administrative structure.[6] There is no necessity for the criminal purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts.[7] […]

[1] See in particular Tadić Appeal Judgement, paras. 195-226, describing the three categories of cases following a review of the relevant case-law, relating primarily to many war crimes cases tried after the Second World War. See also Krnojelac Appeal Judgement, paras. 83-84.

[2] Tadić Appeal Judgement, para. 196. See also Krnojelac Appeal Judgement, para. 84, providing that, “apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent.”

[3] For a description of the second and third, respectively “systemic” and “extended”, forms of joint criminal enterprise, see Tadić Appeal Judgement, paras. 202-204 and Vasiljević Appeal Judgement, paras. 98-99).

[4] Tadić Appeal Judgement, paras. 202-203. Although the participants in the joint criminal enterprises of this category tried in the cases referred to were most members of criminal organizations, the Tadić case did not require an individual to belong to such an organization in order to be considered a participant in the joint criminal enterprise. The Krnojelac Appeal Judgement found that this “systemic” category of joint criminal enterprise may be applied to other cases and especially to serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, para. 89. See also Vasiljević Appeal Judgement, para. 98.

[5] Tadić Appeal Judgement, para. 204, which held that “[c]riminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.” See also Vasiljević Appeal Judgement, para. 99.

[6] Tadić Appeal Judgement, para. 227, referring to the Essen Lynching and the Kurt Goebell cases.

[7]  Id., where the Tadić Appeal Chamber uses the terms, “purpose”, “plan”, and “design” interchangeably.

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