Jacob A. Ramer

Hate By Association:

Individual Criminal Responsibility for Persecution

Through Participation in a Joint Criminal Enterprise

Jacob Ramer

Far from being a vehicle for revenge, it is a tool for promoting reconciliation and restoring true peace. If responsibility for the appalling crimes perpetrated in the former Yugoslavia is not attributed to individuals, then whole ethnic and religious groups will be held accountable for these crimes and branded as criminal. In other words, ‘collective responsibility’ – a primitive and archaic concept – will gain the upper hand; eventually whole groups will be held guilty of massacres, torture, rape, ethnic cleansing, the wanton destruction of cities and villages. The history of the region clearly shows that clinging to feelings of ‘collective responsibility’ easily degenerates into resentment, hatred and frustration and inevitably leads to further violence and new crimes.[1]

I. Introduction

The crime of persecution is nothing new. Perpetrating heinous acts against another solely on the basis of “otherness” has been a common theme throughout human history. Whether it is religion, ethnicity, nationality, or political, certain governments and private actors have attempted to cleanse themselves of the so-called “pollution” that threatened their ideology or existence.[2]

Early instances of persecution resulted mostly from religious differences. Notorious examples such as the Spanish Inquisition resulted in the deaths of tens of thousands of non-believers. Other peoples have lost their lives due to their ethnicity, as approximately a million Armenians did around World War I at the hands of Turks. But death alone, whether widespread or individual, does not classify an act as persecution. Persecution may manifest itself through other violent means, or it may rear its head through the restraint of access to the necessities of life. In all these cases of persecution, the “other” is always viewed by what it is not.[3] Thus, the application is easy, regardless of location, language, belief system.

This essay considers the crime of persecution in international criminal law and how it has collided with the doctrine of joint criminal enterprise at the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). Persecution, by definition, is a specific intent crime, requiring the intent to discriminate on a selected basis. The doctrine of joint criminal enterprise, particularly through its third category whereby an individual may be vicariously liable for another’s acts if those acts are a foreseeable consequence of a common criminal plan, has expanded the notion of individual responsibility. It is not necessary to find a smoking gun or evidence of a direct order; a muted form of guilt by association has effectively replaced such requirements.

The first section briefly discusses the emergence of individual criminal responsibility in international criminal law. The second section considers the doctrine of joint criminal enterprise, including its legal underpinnings in jurisprudence arising from World War, its modern formulation at the ICTY, and its similarities to conspiracy and accomplice liability in the United States. The third section examines the origins of the crime of persecution and its elements. Because its foundation stems from “crimes against humanity” and is now considered as a crime against humanity, the elements common to all crimes against humanity is also examined. Next, the fourth section considers “hate crimes” legislation in the United States, and how their analytical framework can deepen understanding of the proper role between discrimination and vicarious liability. The fifth section discusses the convergence of specific intent crimes, like persecution and genocide, with the doctrine of joint criminal enterprise. The final section proposes improvements to the future use of joint criminal enterprise liability. First, the third category of joint criminal enterprise should not be used for specific intent crimes. Attributing the direct perpetrator’s thoughts to the non-direct perpetrator, where that individual did not possess or intend such thoughts, is unjust and should be reconsidered. Second, before liability attaches for participation in a joint criminal enterprise, the individual should have contributed significantly to that enterprise. Minor participation in a common plan should not enough to expand liability to grandiose consequences. By incorporating these suggestions, modern international criminal law will refocus its energies on those most responsible for mass atrocities. International criminal law should not loosely apply doctrines that dilute individual responsibility; doing so denigrates the importance of the very principles these institutions are meant to uphold. But because of the relatively recent (re-)emergence of individual criminal responsibility, and the political will around the world to enforce it, there is now a great opportunity to hone international criminal law into an institution that will never leave the world community again.

II. The Arrival of Individual Criminal Responsibility in International Criminal Law

Under classical international law, States are the only legal personalities. If something was a crime under international law, the State alone was responsible—there were no individual repercussions or benefits. This all changed in the immediate aftermath of World War II.[4]

The Nuremberg Trial was the first clear enunciation of the notion that individuals have concrete duties under international law.[5] Prior to Nuremberg individuals were charged under national law, usually military law, and tried before national courts.[6] In order to justify this new concept, the judges had to make a dramatic analytical leap from the international treaties they were citing, which mentioned nothing on individual criminal responsibility, to the notion of individual criminal responsibility based on the “crimes” found within those treaties.[7] In language familiar to a current politico-legal debate within the United States about the nature of a judge’s role, one commentator has called what occurred at Nuremberg “judicial activism.”[8] The legal stretch to attribute individual responsibility to military leaders was not too severe because military courts had tried leaders for war crimes before. For example, the Treaty of Versailles allowed the Allies the power to try individuals before their military courts “for violations of the laws and customs of war.”[9] The attribution of responsibility to individuals within the international context was not an analytical breaking point. But attributing responsibility to civilian leaders was certainly more tenuous. There was no precedent for trying civilian leaders for international crimes prior to Nuremberg.[10] The “Hang the Kaiser” moniker after World War I never came to fruition,[11] mostly because the Netherlands granted asylum to him, and international pressure and interest eventually subsided in the proposition. Despite its unsteady foundation, the concept has been widely accepted and subsequently promoted and used. Individual criminal responsibility, whether for military or civilian leaders, for certain acts has arguably become a customary international law.

Due largely to the Cold War, the leaders of wayward regimes or destructive paramilitary groups never faced retribution before an international tribunal. If such individuals ever faced justice, it was usually in the way of summary executions. States meted out punishment as they deemed fit for their own political purposes, oftentimes without proper trials. International law and its fundament adherence to a strict version of sovereignty did not allow for borders to be crossed. Influence and internationally-recognized retribution stopped at the borders. This “live and let live” attitude, however, finally changed when televisions across the world began to air horrific images from the Bosnian War and its sister conflicts of the early 1990’s.

The international community, horrified by the sight of mass graves and stories of ethnic cleansing, launched an investigation to determine what crimes, if any, had been committed, and who had ordered or participated in such crimes. After much research in the field, a commission of experts recommended to the U.N. Security Council the creation of an international tribunal to try alleged war criminals. In 1993, the Security Council set up the International Criminal Tribunal for the Former Yugoslavia, which would prosecute only those involved in the wars related to the breakup of Yugoslavia. The Tribunal began in 1994 and one year later received its first suspect. This modern incantation of individual criminal responsibility before an international tribunal proved highly valuable to the movement of international criminal law. After the creation of the ICTY, the world witnessed the proliferation of tribunals to deal with the most heinous of crimes committed by man. Rwanda, Sierra Leone, and East Timor each saw the international community advocate for and ultimately help them create their own tribunal to deal with the atrocities committed in their countries. In the wake of such evil committed in the early and mid 1990’s, the world came together in Rome in 1998 and finally settled on the creation of an International Criminal Court. Only four years later, in 2002, the Rome Statute had enough signatories to begin setting up the first permanent institution to try war criminals.

III. The Development of “Joint Criminal Enterprise”

The concept of joint criminal enterprise has been called “the most complex and conceptually challenging theory in international criminal law.”[12] Its recent emergence (or re-emergence for its staunch defenders) has provoked vigorous debate about its legitimacy. The origins of the doctrine are generally attributed to events preceding and during World War II, but despite this much earlier arrival, the ensuing fifty years contributed little, if anything, to the concept, until the ad hoc tribunals of the 1990’s.

Human rights groups herald the imposition of this doctrine, and argue that it is grounded in customary international law,[13] and several international criminal tribunals employ it today.[14] Nowhere does the ICTY Statute explicitly provide for the doctrine, yet since its “introduction” by the Tadic Appeals Chamber decision in 1999, it “has become the magic bullet of the Office of the Prosecutor.”[15] The doctrine had immediate effect at the ICTY, as the Prosecutor amended indictments to include such liability, most notably in the Milosevic case.[16] Joint criminal enterprise has seemingly supplanted joint criminal enterprise as the theory of choice.[17] The concept has been referred to by many names, but the ICTY has settled on the phrase “joint criminal enterprise,” and it has been called the preferred term.[18] The following section outlines the doctrine and its precursors from the past six decades.

A. Nuremberg, “Common Plan or Conspiracy,” and Criminal Organizations

Faced with the task of adjudicating the responsibility of leaders physically far removed from fields of battle and concentration camps, the Nuremberg Tribunal considered several distinct doctrines that are important to understanding the foundations of responsibility for the conduct of another in modern international criminal law. The Charter provided for membership liability and also incorporated aspects of conspiracy law. A third doctrine, used by national military authorities in subsequent proceedings following the Tribunal, also contributed to the development of imputed responsibility—that is, the notion of common plan or common design liability.[19]

Liability based on membership in a criminal organization can be attributed to Lieutenant Colonel Murray C. Bernays, a Jewish lawyer in the United States War Department’s three-man “Special Project Branch,” who had been given in September 1944 the job of developing a postwar justice system for Europe.”[20] At that time, the notion of justice imposed through a formal legal process was far from a foregone conclusion at that time. Interestingly, the Soviet Union was the earliest advocate of a postwar tribunal, largely based on its own experiences with show trials.[21] Throughout the war Franklin Roosevelt and Winston Churchill favored summary executions for those involved in the war, and they continually tried to persuade the Russians to go along with the plan.[22] FDR’s administration, however, witnessed a deep division on how to administer postwar justice. But even though the most vocal camp campaigned for summary justice, and despite his early stance, FDR ultimately sided with those in favor of an international tribunal.

Despite the contemporary debate, Bernays doggedly approached the situation when given the assignment. Perhaps the two most difficult issues he had to address was how to punish prewar crimes against German citizens (including German Jews) and others, and how to deal with the millions of Germans who were members of the Nazi party, Gestapo, SS, and other organizations deemed critical to the machinery of death and destruction.[23] The first issue raised new legal issues because war crimes traditionally only occurred during a time of war, and against other states’ citizens. The world witnessed mass atrocities perpetrated by a state against its own people and crimes committed before the outset of war--realms of behavior outside traditional humanitarian law at the time. For the second issue, Bernays looked to Anglo-American conspiracy law, noting precedents such as the Smith Act of 1938 in the United States and the British India Act of 1836.[24] Bernays drew up his proposal within a few weeks, commonly referred to as “Bernays’ Plan,” and President Roosevelt submitted it to Churchill and Stalin at the Yalta Conference in February 1945.[25]

Under Bernays’ Plan, organizations would be charged and tried at the Nuremberg Tribunal alongside the two dozen individual defendants. The judges would determine whether the organizations engaged in criminal behavior and should be designated as a criminal organization. Subsequent military trials would be held for individual defendants, in which they would have to defend against their membership in the organization. The plan was meant to facilitate convictions, and to deal with mass numbers of people involved in criminal activity. Once an organization was deemed criminal, later judges only had to determine whether the accused joined the organization voluntarily. Defendants would be unable to assert their ignorance as to the organization’s criminal purpose.[26]

With Bernays’ Plan on the table, the Allies met in London to discuss the issue of postwar justice. The concept of conspiracy figured prominently at the conference and provoked heated legal debates about the substantive and procedural law to be applied to those on the losing side of the war. American lawyers sought the inclusion of conspiracy as a means of attaching liability to individuals where the relationship between them and the crimes was tenuous at best. Most civilian leaders had no “direct” involvement in the commission of atrocities; it was their underlings who carried out the evil orders. The Americans took the lead in establishing the strike zones that the Nuremberg Tribunal would use. Some delegations apparently first picked their targets, and next worked out the legal principles that would snare the most-high ranking and prominent alleged criminals.[27] They sought refuge in conspiracy, which would allow them to cast the net wide.

On the other side of the table, the French and Soviet delegations distrusted conspiracy law and expressed strong criticisms about its use. According to one account on the debates on conspiracy at the London Conference, “the Russians and French seemed unable to grasp all the implications of the concept; when they finally did grasp it, they were genuinely shocked. The French viewed it entirely as a barbarous legal mechanism unworthy of modern law, while the Soviets seemed to have shaken their head in wonderment--a reaction, some cynics may believe, prompted by envy.”[28] But despite their reservations, they and the other Allies eventually included and incorporated conspiracy law into the Charter.[29]

At the Tribunal, conspiracy law played a role both as a substantive crime (conspiracy to commit crimes against peace) and as a theory of liability, in that one could be convicted of others’ acts that were within the execution of a common plan or conspiracy.[30] The first count against the individual defendants, as well as the seven organizations, expressly reflected the concept of conspiracy as a substantive crime, which was titled “Count One – The Common Plan or Conspiracy.”[31] The indictment specifically alleged, in summation, that all were guilty of “a common plan or conspiracy for the accomplishment of Crimes against Peace; of a conspiracy to commit Crimes against Humanity in the course of preparation for war and in the course of prosecution of war; and of a conspiracy to commit War Crimes not only against the armed forces of their enemies but also against non-belligerent civilian populations….”[32] Following the language of the Charter, the indictment alleged that the defendants,

…during a period of years preceding 8 May 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to commit, or which involved the commission, Crimes against Peace, War Crimes, and Crimes against Humanity, as defined in the Charter of this Tribunal, and, in accordance with the provisions of the Charter, are individual responsible for their own acts and for all acts committed by any persons in the execution of such plan or conspiracy.”[33]

During the judgment deliberations, the British and Soviet judges accepted the validity of conspiracy as a sound legal doctrine along the lines of that argued by the American prosecutors. French judge Donnedieu de Vabres disagreed and argued the case against conspiracy.[34] He, along with his French alternate, wanted the all of Count One thrown out.[35] They believed that the substantive crime absorbed the conspiracy, rendering the charge unnecessary.[36] Interestingly, American judge Francis Biddle sympathized with the French because of his experiences with overly broad conspiracy charges in the United States.[37] But Biddle’s reservations were different. Where the French disagreed with the concept in general, Biddle disagreed with the potentially abusive application, in that too many Germans might be cast into the net if the organizations were found guilty of conspiracy.[38] The judges ultimately compromised and determined that the conspiracy charge was limited to the conspiracy to plan and wage aggressive war, but they dropped the charges of conspiracy in Count One relating to the commission of war crimes and crimes against humanity.[39] The Tribunal ruled that Article 6 did not define, and therefore could not support, the crimes of conspiracy to commit war crimes and conspiracy to commit crimes against humanity, unlike the crime of conspiracy to commit crimes against peace which was expressly supported under Article 6.[40] The Tribunal concluded that the common planning to prepare and wage aggressive war had been established.

Conspiracy as a means of attributing liability to co-conspirators also played a role in the proceedings at Nuremberg, although not as significant as the prosecution would have liked. At the time, co-conspirator liability was well-known in common law jurisdictions, but no civil law country had embraced the doctrine.[41] Regardless of the level of acceptance of this doctrine around the world, Professor Danner evidences the discounting of co-conspirator liability by noting that those convicted of conspiracy to commit aggressive war were those who had directly participated in the planning and those among Hitler’s most senior leadership.[42] Danner also notes that the judgment did not mention conspiracy (or common plan liability) in its discussion those found guilty of crimes against humanity or war crimes.[43] This finding is significant because joint criminal enterprise liability, as will be discussed later, is a vehicle for imputing liability; it is not a substantive crime in itself.

Concerning criminal organizational liability, under the Articles 9 and 10 of Charter of the International Military Tribunal,[44] the prosecution charged seven organizations with being “criminal organizations”: the Nazi Party leadership; the Reich cabinet; Nazi government ministers; the SS; the Gestapo; the SD; the Sturmabteilung (SA); the storm troopers; and the military high command which comprised Germany’s army, navy and air force commanders in chief. The Tribunal ruled that three findings must be established before judging an organization to be criminal: first, a majority of the organization’s members must have been volunteers; second, the organization’s public activities must have included one of the crimes falling within Article 6 of the Charter; and third, a majority or the members must have been knowledgeable or conscious of the organization’s criminal activities or purpose.[45] Using this framework, four of those groups (the Nazi Party leadership, Gestapo, SS, SD) were found to be criminal. The next step in Bernays’ Plan--the adjudication of individuals--never materialized. The judges at Nuremberg tweaked Bernays’ Plan and shifted the burden, in that the prosecution had to prove that the accused not only joined voluntarily but also had knowledge of the organization’s criminal purpose.[46] This burden-shifting resulted in the lack of widespread summary trials for membership in criminal organizations. The mass justice of Bernays’ Plan was largely replaced with an administration de-Nazification program.[47]

The link between prosecuting organizations at Nuremberg and conspiracy law is found in Chief of Counsel Robert H. Jackson’s opening statement on the criminality of organizations, when he stated that “proceedings against organizations are closely akin to the conspiracy charge.”[48] To illustrate the legitimacy of the process Jackson discussed conspiratorial liability laws on the books in several countries, including the United States, France, Great Britain, and Germany.[49] He concluded that “[o]rganizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies and their criminality is judged by the application of conspiracy principles.”[50] Jackson noted, however, that organizational liability, although grounded heavily in conspiracy law, was not the exclusive product of national conspiracy law. Looking to the language of the Charter, Jackson argued that it did not refer solely to “conspiracy,”[51] thus hedging his bets if conspiracy law fell out of favor with the judges.

The judges did consider the similarities between a conspiracy and a criminal organization in that for the latter to exist, “there must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter.”[52] Despite this apparent (or perhaps, attempted) connection between conspiracy law and membership liability, Bassiouni argues that the notion of group or collective responsibility had no basis in international law at that time and it did not satisfy the principle of legality.[53]

B. The Tokyo Tribunal

The other great war crimes tribunal in the wake of World War II also embraced the concept of conspiracy in its proceedings. Often overlooked due to Nuremberg’s long shadow, the Tokyo Tribunal lasted two and a half years, including the seven-month judges’ deliberation in reaching a judgment, and resulted in a 1,218-page judgment and a 49,000-page transcript.[54] The indictment charged twenty-eight individuals--nine civilians and nineteen professionals. In contrast, of the twenty-two defendants at Nuremberg, seventeen were civilians.[55] There were thirty-six counts of crimes against peace, sixteen counts of murder, and three counts of crimes against humanity and conventional war crimes.[56] The core of the case revolved around the conspiracy to wage aggressive war, in contravention to and in violation of several international agreements.

In his opening statement, Chief Prosecutor Joseph B. Keenan, a former United States Attorney who had written the Lindberg kidnapping law and led the gang-busting division at the Department of Justice, wanted to define conspiracy in terms of American practice.[57] He defended his proposal by stating, “This offense is known to and well recognized by most civilized nations, and the gist of it is so similar in all countries that the definition of it by a Federal court of the United States may well be accepted as an adequate expression of the common conception of this offense.”[58] Brendan F. Brown, the dean of law at Catholic University, wrote to the executive committee of the prosecution team that the concept of conspiracy or common-plan liability was common to all of the world’s major legal systems.[59] Brown defended the proposed conspiracy concept by arguing that it was “modest” in comparison to Soviet and Anglo-Saxon law, and that it was more in accordance with French, German, Chinese, and even Japanese conceptions of conspiracy.[60]

The defense immediately attacked the conspiracy charge as dubious. In its own opening statement, the defense argued that conspiracy had no longstanding tradition and was “unique in the Anglo-American legal system …[and] cannot be deemed to constitute international law.”[61] Lead defense counsel Takayanagi Kenzo argued that it was “a peculiar product of English legal history,” citing several Western legal scholars in support of his viewpoint.[62] One of the commentators Kenzo cited had written that it was “a doctrine as anomalous and provincial as it is unhappy in its results. It is unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers ever heard of it.”[63] After hearing arguments from both sides, the court majority[64] ruled that conspiracy was indeed a crime under international law and continued the proceedings.

Count One of the indictment alleged participation as “leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy …[to] wage wars of aggression, and war or wars in violation of international law.”[65] All of the accused, except two, were found guilty of complicity in alleged conspiracy. The judgment read, “We have come to the conclusion that the charge of conspiracy to wage aggressive wars has been made out [and] that these acts are … criminal in the highest degree.”[66] Interestingly, two of those twenty-three were found guilty only of conspiracy.[67] On the other counts, the court threw out all but ten of the forty-five counts,[68] and of those ten, only two did not relate to the waging of war.[69]

The Tokyo Tribunal reinforced the concept of conspiracy within international criminal law but did little to further expand or modify the doctrine. The judges at Tokyo apparently felt somewhat constrained in their discretion, and they looked heavily towards the proceedings simultaneously underway at Nuremberg. In one instance, when the prosecution began to present its case in relation to Japan’s preparations for war in the Pacific and the attack on Pearl Harbor, the opening statement referred to a document from 1934. One of the judges interrupted and stated, “We have just received [copies of the Nuremberg judgment], and the court there stresses the point that evidence of a conspiracy should not go too far back; it should be comparatively recent. … When you consider the Nuremberg judgment you may decide to cut down some of the material you intend to put before the court.”[70] Clearly, decisions made at Nuremberg affected the substance and procedure administered in Tokyo.

One historian of the Tokyo Tribunal states that it actually suffered from the wake of Nazi atrocities and the Nuremberg Tribunal. Minear, in a respected account of the trial, argues that the charges of conspiracy were the result of overzealous prosecutors blindingly applying the unique context of Nazi Germany to Imperial Japan. He states that Tojo was not Hitler, that there was no Nazi Party, that the Japanese constitution was fully functioning as was the government, that the leaders did not usurp any power, and that the context of the Pacific War was totally different from the European theater.[71] Regardless of the different circumstances, the judges considered conspiracy law grounded in international law.

C. International Criminal Tribunal for the Former Yugoslavia

In 1998, the ICTY Trial Chamber in Prosecutor v. Delalic and Delic. referred to a “common criminal purpose,”[72] and with that discussion opened the floodgates to a doctrine the ICTY would later call “joint criminal enterprise.” The Trial Chamber, however, did not elaborate on the concept. It was not until one year later when the Appeals Chamber in Prosecutor v. Tadic used similar language that the doctrine grew teeth.[73]

The first full-length trial at the ICTY ended with mixed results. Supporters pointed to Dusko Tadic’s conviction in 1997 as a victory for justice and the realization of individual criminal responsibility in international law. Not since Nuremberg and its immediate progeny had an individual been subject to an international criminal tribunal. The Tribunal found Tadic guilty on several counts, but he was also acquitted on several others. Despite their disappointment, supporters of human rights and post-conflict justice could point to the acquittals as legitimizing the tribunal; it could not simply be dismissed as a case of victors’ justice. Had the process been a mere show trial, Tadic would have been found guilty on all counts. The Appeals Chamber later reversed some of Tadic’s acquittals, and in the process generated a heated debate regarding the proper limits of individual criminal responsibility within international law.

Dusko Tadic, like many other Yugoslavs before the breakup of the country, lived in a multi-ethnic community. As the owner of a local café and former karate instructor, the Serb interacted with Muslims on a regular basis prior to the unrest of the early 1990s. During the time when Milosevic and Belgrade began to incite ethnic hatred among their Serbian population, Tadic rose to become a local party leader of the Serbian Democratic Society in the Prijedor municipality in Bosnia and Herzegovina. As a member in the paramilitary forces, he helped Serbian and Bosnian Serb forces take over the region. Tadic later facilitated the expulsion and “resettlement” of the entire non-Serb population and even helped pick out Muslim leaders and other prominent leaders (due to his intimate knowledge of the community) detrimental to Serbian policies, who were then mistreated due to their positions. During the conflict many civilians were beaten, robbed, and killed, and others were taken to the detention camps of Omarska, Keraterm, and Trnopolje.

The Trial Chamber ultimately convicted Tadic on several counts of crimes against humanity and war crimes and he was sentenced to twenty years’ imprisonment; it was the Trial Chambers’ acquittal on one charge, however, that eventually led to the development of the doctrine of joint criminal enterprise. The prosecution charged Tadic with the murder of five Muslim men in the Bosnian village of Jaskici. The Trial Chamber determined beyond a reasonable doubt that Tadic was in fact a member of an armed group that entered Jaskici, that the group searched the village for men, and that the five Muslim men who were found shot to death after the group departed the village had all been alive when the group entered the village.[74] Nevertheless, the Trial Chamber noted that it “cannot, on the evidence before it, be satisfied beyond a reasonable doubt that the accused had any part in the killing of the five men.”[75] Notably, the Trial Chamber did, however, find that the murders temporally occurred after Serbian forces entered the village and engaged in ethnic cleansing in a nearby village.[76]

The prosecution appealed this point and the Appeals Chamber reversed, holding that “the only reasonable conclusion the Trial Chamber could have drawn is that the armed group to which [Tadic] belonged killed the five men.”[77] The Appeals Chamber noted that the Trial Chamber had found that Tadic, “with other armed men, participated in the removal of men, who had been separated from women and children, from the village of Sivici to the Keraterm camp, and also participated in the calling-out of residents, the separation of men from women and children, and the beating and taking away of men in the village of Jaskici,” and also found that “five men were killed in the latter village.”[78] The Appeals Chamber demonstrated that the Trial Chamber’s findings of such evidence were sufficient to attach liability. Direct evidence linking Tadic to the murders did not exist; yet the Appeals Chamber reversed the Trial Chamber’s holding and found that Tadic had acted pursuant to a common criminal design and was liable under Article 7(1) of the ICTY Statute. Specifically, Tadic intended to further the criminal purpose “to rid the Prijedor region of the non-Serb population, by committing inhuman acts against them,” and he was aware that it was foreseeable, and knowingly took the risk, that the group would kill non-Serbs in effecting this criminal aim.[79] This holding became the foundation for the modern doctrine of “joint criminal enterprise.”

In finding liability the Appeals Chamber discussed whether participation in a joint criminal enterprise even falls within the language of Article 7(1) of the Statute of the ICTY. The court confirmed its legitimacy and noted that this provision covers not only direct physical perpetration of the crime, but also that “commission of one of the crimes envisaged in Articles 2, 3, 4, or 5 of the Statute might also occur though participation in the realisation of a common design or purpose.”[80] This position has been affirmed by the Appeals Chamber in later decisions.[81] Specifically, the court determined that participation in a joint criminal enterprise is a form of “commission” within the ambit of Article 7(1). Interestingly, the ICTR shares the same language for the individual criminal responsibility provision as the ICTY yet the Rwanda Tribunal has neither relied upon the joint criminal enterprise doctrine nor has it mentioned that Article 6(1) includes such liability.

Seeking to preempt the doctrine’s critics, the Appeals Chamber expressly stated that liability stemming from participation in a joint criminal enterprise is not tantamount to guilt by association. A “guilt by association” charge would fuel critics and de-legitimize a principle of criminal law, and the court wished to attack those charges head-on. The Appeals Chamber referred to the Report of the Secretary-General, which had rejected outright the notion of guilt by association in that membership in an organization does not provide jurisdiction to the Tribunal.[82] The court then reaffirmed the principle of personal culpability, stating that “nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated.”[83]

The Appeals Chamber then laid the framework for joint criminal enterprise liability, which has been consistently followed ever since. There are three categories of joint criminal enterprise, and all three must satisfy three requirements: 1) a plurality of persons; 2) the existence of a common plan, design or purpose that involves the commission of a crime provided for in the Statute; and 3) the participation of the accused in the common plan involving the perpetration of the crime provided for in the Statute.[84] These three objective elements comprise the actus reus for all three categories. The mens rea, on the other hand, is different for each category.[85] This is discussed later in this section.

The first of three categories of JCE involves the situation in which all the co-defendants share the same criminal intent, e.g., where all the co-perpetrators formulate a plan to kill a particular individual. Although only one member of the group may physically commit the act, the others are no less responsible for the killing as a result of their shared intent. To be liable for others’ acts the individual must voluntarily participate in one aspect of the common design and must have intended the result.[86]

The second category is a variant of the first category, growing out of the so-called “concentration camp” cases.[87] In these cases, the actus reus is “the active participation in the enforcement of a system of repression, as it could be inferred from the position of authority and the specific functions held by each accused,” and the mens rea element comprises “(i) knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat inmates.”[88]

The third category, under which the Appeals Chamber convicted Tadic of the Jaskici murders, concerns cases involving “a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.”[89] The now-classic paradigmatic example, as provided by the Appeals Chamber, is the shared intention by a group of individuals to remove forcibly an ethnic group from their village, during which process a victim is shot and killed.[90] In such a case, “[w]hile murder may not have been explicitly acknowledged to be part of the common design, 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.”[91] In other words, “[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.”[92] The Appeals Chamber supported this category with case law from WWII-era national military courts dealing with, inter alia, mob violence.

The Appeals Chamber concluded that JCE liability is present in many national legal systems and is grounded in customary international law. Several commentators disagree with that proposition,[93] especially with respect to the third category of JCE. Steven Powles argues that third-category JCE, upon closer inspection, is not uniformly practiced.[94] Powles attacks the use of the Essen Lynching[95] and Borkum Island[96] cases, stating that they do not stand for the propositions as cited by the Appeals Chamber in Tadic. In Essen Lynching, a crowd of German civilians participated in the group-beating and killing of three British prisoners of war under the escort of a German soldier. Determining who dealt the final blows to the victims was not possible to trace. Powles notes that the prosecution, before a British military court, argued that if the attackers had the intent to kill the prisoners, then they were guilty of murder; if they had no such intent, then they could still be found guilty of manslaughter.[97] Powles suggests that the court’s convictions based on murder simply illustrates the fact that the court believed the mob participants to have intended to kill the airmen, not that they were guilty of participating in an act knowing that others’ lethal acts were foreseeable.[98] Powles similarly finds little support for third category JCE in the Borkum Island case.[99] In Borkum Island, after being shot down in the German town of Borkum, seven American prisoners were forced to march through the streets and were subjected to mob violence by civilians on the street.[100] German officials and soldiers facilitated and participated in beating and firing at the men, resulting in their deaths. The Appeals Chamber in Tadic considered the prosecution’s opening statement and determined that it had advocated common design liability under what would now be considered first-category JCE, whereby each individual shared the same criminal intent to commit murder.[101] The Appeals Chamber then took great liberty and “presumed” that because all of the accused had been found guilty pursuant to a criminal common design to assault the POWs, and because some of those accused had also been found guilty of murder, then “[p]resumably, this was on the basis that the accused, whether by virtue of their status, role or conduct, were in a position to have predicted that the assault would lead to the killing of the victims by some of those participating in the assault.”[102]

Powles does, however, agree with the Appeals Chambers’ interpretation of the post-WWII Italian case D’Ottavio et al.[103] that supports the third category, but he notes that one case alone, out of several cited, does not warrant the finding that JCE is grounded in customary international law.[104] D’Ottavio et al. involved the shooting of an escaped prisoner during the course of the crime of “illegal restraint,” and because it was foreseeable that one of the participants might shoot and kill the prisoner as a result of their common criminal plan, all participants were found guilty of manslaughter.[105] The Appeals Chamber cited several other Italian cases but none of them appear to conclusively support third-category JCE.[106] Professors Allison Danner and Jenny Martinez also argue that the World War II-era case precedent cited by the Appeals Chamber does not support the extended form of JCE. Instead, they argue that more similarities may be drawn from two other concepts present at Nuremberg, which were not cited as support for third-category JCE: criminal organization prosecution and the crime of conspiracy.[107] Both of these concepts are discussed above.

Other commentators tend to pass over the legitimacy of third category JCE--the category that certainly requires the most justification. For example, former justice and president of the ICTY Antonio Cassese, in his 2003 international criminal law textbook, devotes less than a page to criminal responsibility for non-agreed-upon yet foreseeable crimes of other participants in a criminal plan, whereas he spends almost seven pages justifying individual responsibility for non-direct perpetrators that had intended the commission of the crime within a criminal plan.[108] Cassese reviews the cases mentioned by the Tadic Appeals Chamber concerning the first and second category JCEs but passes over the cases supposedly supporting third category JCE.

The mens rea sufficient for liability under third-category JCE also stretches notions of individual criminal responsibility. With respect to the first category, the accused must have shared the intent to commit the crime actually committed.[109] If the accused had the intent to commit the crime and participated in that commission of that crime, then culpability is easily justifiable. With respect to second-category JCE, the accused must have had knowledge of the system of repression which he participates in, and must have intended to further that common design involving ill-treatment.[110] Again, the accused must have had the specific intent to participate in specific criminal activity.

Third-category JCE differs greatly on the requisite mens rea to find liability. Under the third category, the accused is responsible for crimes that go beyond the object of the joint criminal enterprise if he was: a) aware that those non-agreed-upon crimes were a foreseeable consequence of object of the joint criminal enterprise; and, b) with that awareness, he willingly took the risk that that the additional crime may occur and participated in the criminal enterprise.[111] The Trial Chamber in Brdjanin and Talic,[112] explained that the first element as to whether the crime was a natural and foreseeable consequence is objective, whereas the second element as to the individual’s awareness of that natural and foreseeable consequence is subjective. That is, the accused need not have intended the co-actor to have committed any further crime, and does not have to have possessed the other direct perpetrator’s state of mind for that further crime.

As seen from the Tribunal’s expositions on the subject, the first and second categories require an intent to perpetrate the crime, whereas the third category merely requires knowledge that a certain crime is foreseeable, regardless of the actual mens rea of the accused concerning the actual foreseeable crime.[113] Therefore, the first and second categories are a much stricter standard and are more difficult to prove, while a participant may be found liable under third category JCE under a much lower culpable state of mind. In both situations, the non-direct perpetrator is liable. If the prosecution wishes to prove liability under first category JCE, it needs to establish the participant’s specific intent to commission the agreed-upon criminal act, which was subsequently committed. Generally, proving intent is difficult. On the other hand, if the prosecution wishes to pursue liability under a third category JCE, it only needs to prove that the act committed was foreseeable based on the participant’s intent to further the original criminal purpose (setting aside for a moment the “willingness” aspect of mens rea). This leads to objectivity; a much easier and evidence-friendly means of proving “intent.” Taking this distinction into consideration, it is surprising that the Prosecution ever pursues a defendant under first category JCE rather than the more encompassing third category JCE.

Upon inspection, the requisite mens rea for third category JCE seems awfully similar to a standard of negligence—a standard of guilt generally considered inappropriate for serious crimes carrying lengthy prison sentences.[114] Objective criteria, such as foreseeability, are accepted in negligence-based crimes, but those crimes do not carry the stiffest criminal penalties. Such crimes are “a form of anti-social behaviour judged by a different yardstick” than those committed with malice and premeditation.[115] Professor William Schabas argues that joint criminal enterprise, and superior responsibility, for that matter, “establish an objective rather than a subjective standard for the assessment of mens rea [in that the] … Tribunal can remain uncertain about what the offender actually believed, intended and knew, as long as it is satisfied with how a reasonable person in the same circumstances would have judged the situation and reacted.”[116] Schabas is correct to a certain extent but he does not address the “willingness” aspect of third category JCE espoused in later jurisprudence of the ICTY. The crime must not only have been a natural and foreseeable consequence--a strictly objective element, but the accused must also have known of the foreseeable consequence and nevertheless “willingly” taken the risk.[117] Yet despite the inclusion of this “willingness” sub-element to continue participation in a common plan that might lead to foreseeable acts, the mental element still remains largely objective. If the prosecution successfully argues that a crime is a foreseeable consequence of a stated common plan, then the accused’s actual state of mind will be difficult to rebut. In fact, even if the individual knew of the foreseeable crime and took steps to avoid such consequences, that individual would nevertheless be responsible for all acts committed within the scope of that common enterprise. Thus, the apparent subjective inclusion into the requisite mental element does little to protect against improper findings of personal culpability.

D. How does JCE compare to US Accomplice Liability and Conspiratorial Liability?

Joint criminal enterprise may sound familiar to American-trained lawyers. Upon first glance, one might immediately think of conspiracy law and accomplice liability. Even foreign lawyers may recognize certain aspects of JCE liability. In other major national legal systems, for instance, participants in a joint enterprise are not responsible for others’ acts if those acts fall outside the common purpose unless those acts were foreseeable within the context of the joint enterprise. Acts representing a complete departure from the original plan, however, do not attach themselves to non-direct perpetrators.[118] Two theories of liability in particular produce such results. Although often used synonymously, “conspiratorial liability” and “accomplice liability” are distinct doctrines and should be considered separately. Examining them as such reveals that JCE liability has characteristics of both.

Throughout its history conspiracy law, which includes conspiracy as a substantive offense and as a theory of liability, has met with skepticism. The formation of the Nuremberg Tribunal witnessed resistance amongst certain Allied delegations with respect to its use. Because of the great potential to cast a wide net, conspiracy law has been referred to as the “darling of the modern prosecutor’s nursery.”[119] Even United States Supreme Court Justice Robert H. Jackson once stated that the “crime of conspiracy is so vague that it almost defies definition”[120] and described it as a “dragnet device capable of perversion into an instrument of injustice in the hands of a partisan or complacent judiciary.”[121] Yet, Jackson concluded that it “has an established place in our system of law …[and there is] no constitutional authority for taking this weapon from the Government.”[122] Interestingly, these comments by Jackson came only half a decade after his role as head of the American prosecution delegation at Nuremberg.

Conspiracy law involves two separate, but interrelated, key concepts: conspiracy as an inchoate offense and conspiracy as a complicity doctrine.[123] Regarding the criminal offense, in U.S. state common law a conspiracy is “an agreement by two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means.”[124] An accused may be guilty of a conspiracy itself; the commission of an underlying act is not required. Unlike conspiracy, a joint criminal enterprise, standing alone, is not a crime per se. It is only a complicity doctrine.

Critics of conspiracy as a crime in itself decry its inchoate nature, and they argue that such a crime defies expectations of criminal justice. The fact that an individual may be found guilty of conspiracy despite not having committed an act in perpetration of any crime is hard for many to swallow. Mere agreement by two or more persons to commit a crime, with no further positive act required, including the partial or full commission of the crime, is enough to find guilt of conspiracy. Conspiracy law, therefore, focuses on the mens rea rather than the physical perpetration of any underlying crime.[125] Because of this emphasis, one commentator has commented on the risk that “persons will be punished for what they say rather than for what they do, or [simply] for associating with others who are found culpable.”[126]

The Appeals Chamber addressed the relationship between conspiracy and joint criminal enterprise, stating that joint criminal enterprise requires the finding of positive action in furtherance of the common plan in addition to the meeting of the minds.[127] To support this, the court quoted the U.N. War Crimes Commission, which stated, “the difference between a charge of conspiracy and one of acting in pursuant [sic] of a common design is that the first would claim that an agreement to commit offences had been made while the second would allege not only the making of an agreement but the performance of acts pursuant to it.”[128] The Appeals Chamber also distinguished joint criminal enterprise from liability arising from membership in an organization.[129] Unlike the Nuremberg Charter, organizational liability did not fall within the Statute of the ICTY.[130]

Comparing JCE liability to the crime of conspiracy raises interesting similarities and distinctions. A conspiracy, as in JCE liability, requires two or more persons. Likewise, those persons must possess all required intents. For example, if three persons intend to agree, but only two of them intend to commit the underlying offense, then that third person is not guilty of a conspiracy, whereas the other two are guilty of conspiracy. This is known as the plurality requirement of JCE. Also similar to JCE, an express agreement amongst the parties is not required.[131] The agreement may be inferred and may arise extemporaneously.

Furthermore, common law conspiracy is a specific intent crime, as is the case with persecution and genocide. Conspiracy requires from two or more persons (1) the intent to agree; and (2) the intent that the object of their agreement be completed.[132] Unless those two (or more) persons possess these two specific intents, no conspiracy has been committed.[133] Conspiracy’s specific-intent nature oftentimes results in a higher culpability for the crime of conspiracy as compared to the object of the conspiracy. For example,

[S]uppose that D1 and D2 agree to set fire to an occupied structure in order to claim the insurance proceeds. If the resulting fire kills occupants, they may be convicted of murder on the ground that the deaths, although unintentional, were recklessly caused. They are not guilty of conspiracy to commit murder, however, because their objective was to destroy the building, rather than to kill someone. Put another way, as a matter of logic, one ‘cannot agree to accomplish a required specific result unintentionally.’[134]

U.S. state common law splits on this question of whether conspiracy liability (i.e., liability for the crime of conspiracy) requires a higher level of culpability for attendant circumstances above that of what is required for the substantive offense of the criminal purpose.[135] The Model Penal Code resolves this issue in favor of a higher culpability requirement. Thus, if two individuals agree to burn a house and, in the process, an occupant dies, they may be found guilty of conspiracy to commit arson, the crime of arson, and the crime of murder (based on reckless indifference to human life), but they are not guilty of conspiracy to commit murder unless that was an object of their agreement.[136]

Therefore, conspiracy as a substantive stand-alone inchoate offense is not directly applicable to ICTY jurisprudence on JCE because the Tribunal has held that there is no crime of joint criminal enterprise. Joint criminal enterprise is means of attaching liability, and thus, it is conspiratorial liability—that is, vicarious liability for the acts of a co-conspirator—that is most similar to JCE liability and most relevant for the purposes of this discussion.

Conspiratorial liability is best understood when examining it alongside the doctrine of accomplice liability. Teasing out the distinctions is important to understanding when a defendant might be vicariously responsible for acts committed by others not intended by the defendant. Conspiratorial liability is potentially broader, and more encompassing, than accomplice liability.[137] One commentator distinguishes the two in the following manner: “an agreement between two or more persons to participate in the commission of a crime is the key to a conspiracy and, therefore, to conspiratorial liability. Actual assistance in the crime is not required. Accomplice liability requires proof that an actor at least indirectly participated (assisted) in the crime; an agreement to do so is not needed.”[138] This distinction demonstrates that one can be a conspirator without being an accomplice,[139] and one can be liable as an accomplice but not as a co-conspirator.

In laying the foundation for JCE, the Appeals Chamber in Tadic referred to “the notion of common design as a form of accomplice liability.”[140] The Appeals Chamber refrained from further discussion, and it does not appear that the court considered the distinction between accomplice liability and conspiratorial liability. Nevertheless, based on this distinction above, the concept of a joint criminal enterprise appears to be a hybrid doctrine based on both accomplice liability and conspiratorial liability. Similar to accomplice liability, JCE liability requires the participation in the common plan involving an offense. Similar to conspiratorial liability, JCE liability requires the existence of a common plan, that is, a meeting of the minds. Thus, the joint criminal enterprise appears to merge two theories of liability found within U.S. state common law.

An example helps illustrate this distinction. Consider a Serb happening upon a group of Bosnian Serbs beating a Bosnian Muslim at night. The Serb realizes what is transpiring, and, unbeknownst to the group, turns on the lights with the intention that the beating be more productive. Under U.S. common law, the Serb might be guilty under accomplice liability theory because he participated in and facilitated the criminal act. He would not be guilty, however, under conspiratorial liability because there was no meeting of his mind and those of the group’s. If the Serb had earlier met the group at a café, and indicated that he would turn on the lights at a specific moment, but later reneged on this act, he would still be guilty of conspiracy because actual positive assistance is not required. Neither of these two examples, however, would result in JCE liability.

The different legal phrases associated with these separate theories of liability further clarify the distinction. Under an accomplice liability theory, an individual is generally liable for the “natural and probable consequences” of his intentional assistance in a given crime. Therefore, a natural and probable consequence of participation in an armed robbery would be the shooting and killing of a bank teller. Even if the individual indicated to his partner-in-crime that he, under no circumstances, wanted anyone to die, he is still liable under the “natural and probable consequences” doctrine. When considering conspiratorial liability, American law generally looks to whether the non-agreed-upon crime was a “reasonably foreseeable” act in furtherance of the conspiracy. This rule of vicarious liability, espoused by the U.S. Supreme Court in Pinkerton v. United States, holds that a conspirator may be held liable for the reasonably foreseeable acts of a co-conspirator committed in furtherance of the conspiracy.[141] The critical component of this analysis is the starting point: how broadly does the prosecution define the conspiracy? If the conspiracy is broadly defined, then many acts will be foreseeable consequences of the plan. On the other hand, if the conspiracy is limited in scope, not much will be considered foreseeable as a result of the original conspiratorial plan. Several U.S. states and federal law follow Pinkerton liability, but several other jurisdictions and the Model Penal Code have rejected the approach.[142]

IV. The Development of the Crime of Persecution

A. The Foundation of Crimes Against Humanity

The phrase “crimes against humanity” is often credited to the Nuremberg Charter but permutations are found much earlier in the century. The acts comprising crimes against humanity have been prohibited under several international instruments that regulate armed conflict, most notably, the 1899 and 1907 Hague Conventions.[143] For example, the Preamble to the 1907 Hague Convention addressed “the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.”[144] The 1907 Preamble, along with the similar 1899 Preamble, may be considered the legal basis for crimes against humanity.[145]

Less than a decade later, on May 28, 1915, France, Great Britain, and Russia declared that the Ottoman Empire had massacred the Armenian population in Turkey, constituting “crimes against civilization and humanity” for which the perpetrators should be held responsible.[146] Had it not been for the United States’ apprehension of what legal content, or lack thereof, comprised crimes against humanity, the Treaty of Versailles might have used such language.[147]

The first positive formulation in international criminal law for crimes against humanity arose from the London Conference in the summer of 1945.[148] In London the Allies met to hash out issues of postwar justice. They debated the components of international law, particularly international criminal law, rather than what constituted German national law as was the case with the Control Council Law No. 10.[149] On August 8, 1945, they settled on the London Agreement. Appended to the agreement was the Charter of the International Military Tribunal for the Trial of the Major War Criminals of the European Theater (“Nuremberg Charter”), setting forth the authority of an international tribunal to prosecute those most responsible for atrocities committed in Europe. The judgment at the Tokyo Tribunal did not consider the issue of crimes of humanity, or persecution for that matter.[150]

The Nuremberg Charter listed three crimes falling within the Tribunal’s jurisdiction: “crimes against peace,” “war crimes,” and “crimes against humanity.” The Allies, notably the American, British, and Russian delegations, realized that many of the atrocious acts committed during the war fell outside the parameters of the contemporary law of armed conflict and war crimes and crimes against peace, and subsequently agreed upon this third category. “Crimes against humanity” were included in the Charter to avoid a gross injustice that would result by rigidly adhering to the protected classes of people under the law of armed conflict. In other words, the victims of Nazi Germany’s Final Solution involved nationals from Germany and its allies. Other German nationals suffered atrocities, and all these individuals were not per se protected under war crimes. Article 6(c) of the Charter provided for these offenses, which defined “crimes against humanity” as: “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[151] The United Nations War Crimes Commission highlighted several novel phrases in the definition that made crimes against humanity particularly pertinent.[152] First, the crimes could be committed against “any civilian population,” which necessarily includes a country’s own citizens. No longer would nationality be a procedural bar. Second, the crimes could be committed “before or during the war” as opposed to only being committed during war. Third, crimes against humanity may occur “whether or not in violation of the domestic law of the country where perpetrated.” These principles ensured that certain Nazi atrocities would not be procedurally barred from prosecution.

This arguably new category of crimes generated much discussion. The drafters at the London Conference debated whether “crimes against humanity” could be supported under any of the sources cited by the Permanent Court of International Justice, that is, international conventions, customary international law, general principles, or … After concluding in the affirmative, the attendees then were faced with the more difficult task of determining the contents of the crime.[153]

Because of the crime’s dubious and uncertain parameters, the drafters presumably were heavily concerned with the principle of legality. Bassiouni sheds light on the formulaic process, stating that the drafters had to “stitch together different elements of pre-existing law and to extrapolate therefrom new legal elements while satisfying the requirements of the ‘principles of legality.’”[154] The drafters determined that crimes against humanity “are simply an extension of war crimes because the category of protected persons is the same in the two crimes, the difference being whether the violators were of the same or another nationality,” and thus, crimes against humanity were originally grounded in international humanitarian law and should be understood as such.[155] Linking this new category of crimes with the already well-established category of war crimes would, perhaps, allay potential problems arising from the principle of legality.[156]

But why was it not until 1945 before such crimes were covered in international law? Oftentimes, however, new laws are mere responses to events never imaginable or problems previously dormant. Bassiouni refers to the events between 1932-1945 as highly indicative of this principle, writing:

The facts that gave rise to ‘crimes against humanity’ were too barbarous and too momentous to foresee, thus, no specific positive international criminal law existed which specifically covered all of the terrible deeds that were committed during that period by the Nazi regime. It was simply a case where the facts went beyond what international law had posited. Because they were so unlawful in nature, the law had simply not referred to such atrocities specifically. Indeed, the law seldom anticipates the unthinkable.[157]

Postwar contemporary international law definitely did not cover previously unthinkable events such as the Holocaust, yet this was not the first instance of mass atrocities. It was, however, the first time when several countries had the political will and existing network to cooperate in such an endeavor to push international law into such a manner.

B. Common Elements to Crimes Against Humanity

Since the Nuremberg Tribunal, crimes against humanity have become entrenched as a legitimate and identifiable category of crimes. No longer do lawyers and scholars debate the merits of the existence of such a category. Over the past sixty years, however, the individual elements of these crimes proved elusive. ICTY jurisprudence has changed this considerably. Since its first trial, the ICTY, both at the trial and appellate levels, has added greatly to the development of crimes against humanity. Crimes against humanity now have a checklist of components, thus ensuring uniformity in application. Because of its tremendous influence on modern international criminal law (and because of its wholehearted acceptance and widespread use of the doctrine of joint criminal enterprise), the ICTY’s decisions concerning crimes against humanity figures prominently in this article, and thus, all definitions and stated elements are from the ICTY.

There are four elements common to all crimes against humanity. First, there must be an armed conflict, either international or internal in character.[158] Second, “the acts of an accused must be part of a widespread or systematic attack.”[159] Importantly, the attack need not be both widespread and systematic; either is sufficient. “Widespread” is generally defined as “the large-scale nature of the attack and the number of targeted persons,” whereas “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence.”[160] It is the attack, not the individual criminal acts of the accused, that must be widespread or systematic.[161] The acts of the accused need only be a part of the attack and a “single or limited number of acts” may constitute a crime against humanity “unless those acts may be said to be isolated or random.”[162] For example, “[p]atterns of crimes, in the sense of the non-accidental repetition of similar criminal conduct on a regular basis, are a common expression of such systematic occurrence.”[163] An “attack is not limited to the use of armed force; it encompasses any mistreatment of the civilian population.”[164]

An important distinction is that between an “attack” and an “armed conflict.” According to the Trial Chamber in Brdjanin, the two concepts are:

distinct and independent from each other. The attack could precede, outlast or continue during the armed conflict, without necessarily being part of it.[165] To establish whether there was an attack, it is not relevant that the other side also committed atrocities against its opponent’s civilian population.[166] Each attack against the other side’s civilian population would be equally illegitimate and crimes committed as part of such attack could, all other conditions being met, amount to crimes against humanity.[167]

The Trial Chamber in Brdjanin stated that the temporal and geographical relationship between the crime and the attack need not be necessarily tight. The criminal acts “need to objectively ‘form part’ of the attack by their nature or consequences,[168] as distinct from being committed in isolation, but they do not need to be committed in the midst of the attack.”[169] The Trial Chamber further noted that “a crime committed several months after, or several kilometres away from the main attack could still, if sufficiently connected otherwise, be part of that attack.”[170] Article 5 of the Statute grants jurisdiction over crimes “committed in armed conflict,” but the Trial Chamber in Brdjanin, citing favorably the Appeals Chamber in Kunarac, held this to be different than that required in Article 3 (violations of the laws and customs of war), which requires a “close relationship” between the acts of the accused and the armed conflict.[171] Instead, “the nexus with the armed conflict under Article 5 is ‘a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.’”[172]

Significantly, crimes against humanity do not require that the acts of the accused and the attack itself must have been committed pursuant to a pre-existing policy or plan.[173] The existence of a plan or policy, however, may be relevant when proving the elements, namely, whether the attack was widespread or systematic, and whether the attack was directed against the civilian population.[174] But these elements may be sufficiently proved through reference to other evidence without resorting to proving up a plan or policy.[175] Other factors that may be considered in determining whether an attack is widespread or systematic include the consequences of the attack upon the targeted population; the number of victims from the attack; the nature of the acts within the attack; the participation, if any, of officials and authorities; and any identifiable pattern(s) of crimes.[176]

Third, the widespread or systematic attack must be “directed against a civilian population.”[177] When determining what constitutes a “civilian population,” the court must look to the state of customary international law at the time of commission of the act.[178] The Appeals Chamber in Kordic and Cerkez established that the definition of civilians and civilian populations used in Article 50 of Additional Protocol I reflects customary international law.[179] The Appeals Chamber in Blaskic affirmed the Appeals Chamber’s elaboration in Kunarac on the meaning of a “civilian population,” stating,

…the use of the word ‘population’ does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a limited and randomly selected number of individuals.[180]

Regarding the phrase “directed against,” the Appeals Chamber in Blaskic quoted Kunarac again, holding that it is

…an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary object of the attack’. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst.[181]

The burden of proof of whether a person falls within the protected categories lies with the Prosecution.[182] The Appeals Chamber in Blaskic determined, after considering Article 4(A) of the Third Geneva Convention and Article 50 of Additional Protocol I, that

…members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. However, the Appeals Chamber considers that the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic.[183]

The language seems workable upon first glance but it leaves open the question as to what happens when the attack was directed towards individual combatants who are among the “civilian population.” Because the population is considered civilian in nature despite the presence of soldiers or members of a resistance group, does an attack on those individuals constitute a widespread or systematic attack on the “civilian population”?

The answer might be found in the Brdjanin Trial Judgment. When discussing the victims of an attack, the Trial Chamber noted that the attack does not have to target the entire civilian population in that area, but it also must not have been directed against a “limited and randomly selected number of individuals.”