How HNS Shot at JCE and Missed the Tribunal

After the adoption of the Declaration of the Croatian National Assembly (HNS), one demand caused the most protests both in the world and in BiH: 

 “We reject the qualifications of the International Criminal Tribunal for the former Yugoslavia regarding the joint criminal enterprise (JCE) which are groundlessly and unjustly attributed to the Republic of Croatia, the Croatian Republic of Herceg-Bosnia and the Croatian Defence Council. Such malicious qualification is, unfortunately, used to attempt to achieve the war aims of one of the parties in the war in Bosnia and Herzegovina and to eliminate the Croatian people as a political entity in Bosnia and Herzegovina. The International Criminal Tribunal for the former Yugoslavia was not competent in the case of 'Prlić and others', nor was it competent, as it ruled in 2007, to decide on issues of state responsibility, as its jurisdiction is criminal and extends only to individuals.”

 “The joint criminal enterprise (JCE) as a new form of criminal offense, which is not provided for in the Statute, was introduced through the 'back door' into the ICTY’s practice, wrote legal experts from HAZU in 2007 in a huge, commissioned study.

In public appearances, HNS members also claimed that it was not possible to prosecute under JCE, which does not exist in the Tribunal’s Statute.

It seems incredible that the HNS accused the Tribunal of working for “the achievement of the war aims of Bosniaks, who are the greatest victims of the JCE, and that the JCE was designated as collective guilt. The legal basis of the JCE is precisely the opposite of these views of the HNS. It concerns individual responsibility.

The Trial Chamber of the Tribunal in the case of Prlić et al. determined that in the design of a common criminal purpose, a group of political and military figures, including notably Franjo Tuđman, Gojko Šušak, Janko Bobetko, as well as the leaders of Herceg-Bosnia Boban, Prlić, Stojić, Praljak, Petković, Ćorić and Pušić, reached a mutual agreement to achieve a common criminal purpose.

Article 7 of the Statute of the Hague Tribunal regulates the forms of participation in war crimes: “Individual criminal responsibility” reads: “A person who planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of any of the crimes referred to in Articles 2 to 5 of this Statute shall be individually responsible for that crime.”)

The trial and conviction for JCE is precisely a matter of individualizing guilt, not as claimed by the HNS.

Interestingly, Milan Martić was convicted for a “joint criminal enterprise” in Croatia. He participated in the JCE with the aim of creating an ethnic Serbian territory by displacing the non-Serb population. There are several convictions before the Hague Tribunal for the joint criminal enterprise of the leaders of SAO Krajina, yet recently in Croatia, the conviction for the joint criminal enterprise of the Mostar criminal Marko Radić was overturned, and he was practically set free. 

Because, JCE is fundamentally rooted in customary international law. Article 7 of the Tribunal’s Statute, under the term “commission” of a criminal offense, lists some court decisions in proceedings for crimes committed during World War II. The concept of JCE as part of active law is contained in several national legal systems. It is also contained in two international treaties – the Rome Statute of the Tribunal and the International Convention for the Suppression of Terrorist Bombings.

About 75 individuals were convicted for JCE at the Hague Tribunal.  Of these, 47 in BiH. The conviction of Dušan Tadić on appeal in 1999 is generally recognized as the first formal recognition of JCE. At that time, the first explicit, now famous, definition of a joint criminal enterprise was given, according to which the cumulative existence of the following three elements is necessary for this criminal offense: a plurality of persons, the existence of a common plan, intent or goal leading to a crime, and participation in a common enterprise which involves the commission of a crime. Thus, criminal responsibility extends to other perpetrators who participated in ordering, instigating, attempting, and aiding and abetting...

This is case law that has been confirmed by other international courts over many years of history. From Nuremberg, Rwanda, Cambodia to Bosnia and Herzegovina. All international ad hoc tribunals deal, within their jurisdiction, with crimes and institutes that originate exclusively from customary international law.

The courts established by the British and American occupation forces in Germany applied this doctrine in trials against German Nazis. The Italian Supreme Court applied a similar doctrine in trials against Italian fascists.

JCE is a far-reaching theory, primarily oriented towards the victim, often applied for the prosecution of high-ranking perpetrators, as well as lower-ranking ones.

The doctrine of JCE holds members of a group individually responsible for crimes committed by the group and implies criminal responsibility of an individual for crimes committed by other persons within a common plan or purpose. For example, if three men commit a bank robbery, in which one of the robbers kills the guard, the law holds all three guilty of murder.

The joint criminal enterprise is somewhat similar to the legal doctrine of command responsibility. Without a certain degree of cooperation and coordination of activities, it is impossible to commit atrocities such as genocide or crimes against humanity.

The Tribunal’s indictment against Milošević for Croatia included a joint criminal enterprise. After years of investigation, the institute of 'joint criminal enterprise' was also used to file an indictment against the Serbian leader for crimes in Bosnia and Kosovo. The Tribunal’s prosecution accused Milošević of “the most serious human rights violations in Europe since World War II.”

No one knows how it would be possible to adequately punish political masterminds, as the real culprits for the most serious crimes, without the existence of JCE. 

A quarter of a century of the Tribunal’s work is the highest achievement of international law to date. Despite shortcomings, the greatest European and American lawyers were the majority in the prosecution offices and courts and did an excellent job. It cannot be allowed for some cheap and legally incorrectly articulated national declarations, like this one from Mostar, to deny these achievements. The Tribunal’s legacy is a value that must be preserved. It is the strongest light that shows the world the path to the future it should be.