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.”[184]  Therefore, this language suggests that a limited attack on a specifically targeted, i.e., non-random, small group of insurgents, for example, would not be considered an attack for purposes of this element.[185] 

Fourth, the perpetrator must act with “knowledge that his acts formed part of the broader criminal attack.”  This mental element may be broken down into two distinct mental elements: 1) knowledge that there is an attack on a civilian population; and 2) knowledge that his acts comprise part of that attack.  When considering the additional required intent, that is, the intent to commit the underlying criminal act, it is clear that crimes against humanity inheres three distinct mental elements.[186]  Regarding the first two mental elements, actual knowledge must be present; knowledge of the risk is not enough.  The Appeals Chamber in Blaskic stated, “The Trial Chamber, in stating that it ‘suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan,’ did not correctly articulate the mens rea applicable to crimes against humanity.”[187]  The Blaskic Appeals further explained:


the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.’  Furthermore, the accused need not share the purpose or goal behind the attack.  It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim.  It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof.  At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.[188]


Earlier decisions at the ICTY, such as the Trial Judgment in Kunarac, determined that that knowledge would be satisfied if the offender willingly took the risk that his acts comprised part of a larger criminal act, regardless of whether he had actual knowledge.  Later decisions, such as Blaskic quoted immediately above, did not share this reasoning.[189]  The offender does not, however, need to have intimate or even peripheral details of the attack.

            Unlike the crime of persecution, crimes against humanity as a whole do not require any additional mental element.  Although Article 5 of the ICTY Statute mentions little about mens rea, the Appeals Chamber in Tadic ruled that discriminatory intent, like that found in Article 5(h), is not an element of crimes against humanity.[190]



C.     Elements of Persecution as a Crime Against Humanity


Since World War II, the concept of persecution has crept more and more into the lexicon of international law.  Legal instruments applied the principle to various contexts and dealt with the issue in several different ways.[191]  Several post-1945 international instruments denounce discriminatory practices resulting in persecution, but none of them, except for the 1973 Apartheid Convention, criminalizes the violations.[192]  Within national law, Professor Cherif Bassiouni has noted that there is no crime by the name of “persecution” in any of the world’s major legal systems.[193]  But after considering the common beliefs and definitions of “persecution” used in pre-1945 dictionaries in those countries, his proposed definition is:


‘State action or policy’ leading to the infliction upon an individual of harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim’s beliefs, views, or membership in a given identifiable group (religious, social, ethnic, linguistic etc.), or simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator.[194]


The ICTY considered this definition in its determination as to the contexts and elements of the crime of persecution.[195]

The crime of persecution is among the crimes against humanity enumerated in Article 6 of the ICTY Statute, along with murder, extermination, enslavement, deportation, imprisonment, torture, rape, and other inhumane acts.[196]  Because persecution, like many other offenses in international criminal law, has not a long history of positive formulations and was largely without case-law precedent, the Tribunal first needed to provide the elemental framework.  After its initial elucidations, over the years the Tribunal has continually re-examined the substance of the crime of persecution.[197]  This has resulted in numerous permutations on the exact elements and definition of persecution.

Despite the unclear, and sometimes conflicting, jurisprudence on persecution, the Tribunal now prefers and commonly uses the formulation espoused by the Appeals Chamber in Kordic and Cerkez.  It defined persecution that constitutes a crime against humanity as:


            an act or omission which:

1.      discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and

2.      was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).[198]


This definition clearly demonstrates that there are two distinct elements to persecutions.  Another definition that has been used on several occasions is the “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5.”[199]  Although similar, the Appeals Chamber has predominantly used the two-part definition above in recent cases.[200]  

The first element of the definition of persecutions comprises two sub-elements: 1) the act or omission must discriminate in fact; and 2) the act or omission must deny or infringe upon a fundamental right.  Regarding the first sub-element, early Tribunal jurisprudence held that the actus reus must have discriminatory consequences in fact, that is, there is a discriminatory element to the actus reus, in that discriminatory intent alone was not sufficient.[201]  In Kvocka, however, the Trial Chamber rejected this approach, instead stating that “if a person was targeted for abuse because she was suspected of belonging to the Muslim group, the discrimination element is met even if the suspicion proves inaccurate.”[202]  This seemed to be an anomaly as the Trial Chamber in Krnojelac later contradicted Kvocka on this point, noting that “[t]he existence of a mistaken belief that the intended victim will be discriminated against, together with an intention to discriminate against that person because of that mistaken belief, may in some circumstances amount to the inchoate offence of attempted persecution, but no such crime falls within the jurisdiction of this Tribunal.”[203]  The Trial Chamber in Krnojelac sided with what it deemed to be the view consistently taken since the Tribunal first addressed the issue (minus the Kvocka Trial Chamber decision),[204] and stated that it is the discriminatory consequences in addition to the discriminatory intent that give persecution its unique character and sets it apart from other crimes against humanity.[205]  But again, the Tribunal changed course on this point and stated in Brdjanin that persecution can occur in the case of mistaken identity.[206]

The second sub-element, i.e., that the act or omission must deny or infringe upon a fundamental right, is less concrete.  The Statute of the ICTY does not provide a list of acts that may constitute persecutions as a crime against humanity, but the Tribunal has established a jurisdictional limit.  The Appeals Chamber in Kordic and Cerkez stated that “the acts underlying persecutions as a crime against humanity, whether considered in isolation or in conjunction with other acts, must constitute a crime of persecutions of gravity equal to the crimes listed in Article 5 of the Statute.”[207]  Thus, the act must “constitute a denial of or infringement upon a fundamental right laid down in international customary or treaty law,”[208] and for purposes of legality, the act must have constituted a crime against humanity in either customary international law or international treaty law at the time of commission.[209] 

            Notably, all persecutions will involve the denial of a fundamental human right but not all denials of fundamental human rights will constitute persecution.[210]  Certain denials may not reach the level of seriousness required.  Determining what constitutes a denial or infringement upon a fundamental right is imprecise but the contents of the Statute provide a foundation.

            The criminal acts underlying a charge of persecution may be enumerated within Article 5 or elsewhere in the Statute, or may be found outside the Statute.[211]  Crimes enumerated in Article 5 are “by definition” serious enough to constitute a crime against humanity.  For instance, murder, extermination, enslavement, deportation, imprisonment, torture, rape, and other inhumane acts will all sustain a charge of persecution.  Those crimes enumerated elsewhere in the Statute as well as those not enumerated in the Statute, must meet an additional test—they “must reach the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute,” which “will only be met by gross or blatant denials of fundamental human rights.”[212]  Interestingly, the language of this test mirrors language used in the earlier definition of persecution espoused by the ICTY.  Several crimes found within Article 2 are also found within Article 5, and thus, they undoubtedly meet the gravity test and require no analytical justification.[213] 

Crimes not enumerated within the Statute itself but that may rise to the level of the Article 5 crimes include, for example, the use of human shields[214] and outrages upon personal dignity, including harassment, humiliation, and psychological abuse.[215]  An example of a crime that does not in itself constitute persecution would be unlawful arrest.[216]  The crime constitutes the denial and infringement upon a personal right, but standing alone, it does not amount to the level of gravity as the enumerated Article 5 crimes against humanity.  The unlawful arrest would need to be combined with other acts, such as unlawful detention or inhumane living conditions, in order to warrant a finding of persecution.[217]  In this respect, the Tribunal takes a holistic approach when determining whether a set of circumstances, rather than an individual act, combine to form the crime of persecution.

            Significantly, physical injury to the person is not the only form of persecution.  The Blaskic Appeals Chamber favorably quoted the Trial Judgment, stating that persecutions “may take forms other than injury to the human person, in particular those acts rendered serious not by their apparent cruelty but by the discrimination they seek to instill within humankind.”[218]  Therefore, the confiscation or destruction of private dwellings and businesses, symbolic or historical buildings, or the means of subsistence, may all constitute persecution.[219]  Attacks on personal property might even warrant a finding of persecution if the attack was committed with the requisite discriminatory intent.  Whereas an attack on the physical person may not be as contextually-based, instances dealing with the arguably less-serious attack on personal property require a high degree of contextualization.  For example, the burning of a car, by itself, does not amount to persecution.  However, if that car was the only means of transport the head-of-household had to get to work and go to market, and was essential to the family’s survival, then a finding of persecution may be more warranted.[220]  Attacks on communal property also may amount to persecution.  The destruction of and damage to religious and educational institutions might arise to the level of gravity as those crimes enumerated in Article 5.[221]

The appropriate method of deducing whether a crime has reached the requisite level of gravity is elusive.  Based on the Tribunal’s decisions, it is unclear how to consider fully the interplay between the first and second elements of persecution—i.e., the relationship between the act and the discriminatory intent—in determining what crimes may amount to persecution.  What factor or factors contribute to the gravity analysis in determining the seriousness of the crime?  In other words, should the court determine whether the act itself (considered without any discriminatory intent) reaches the same gravity, essentially considering the act in a vacuum?  Or may an act reach the level of gravity by way of the act when combined with discriminatory intent, thus taking a more contextually-based approach? 

In Blaskic, the Appeals Chamber considered whether the Trial Chamber appropriately addressed this issue.  The Appeals Chamber found that the Trial Chamber had erred in failing to consider the gravity of the underlying acts by themselves, and held that “it is not enough that the underlying acts be perpetrated with a discriminatory intent.”[222]  The Trial Chamber had “appeared to consider, erroneously, that underlying acts are rendered sufficiently grave if they are committed with a discriminatory intent.”[223]  This view was supported by the Appeals Chamber in Kordic and Cerkez, which stated that “not every act, if committed with the requisite discriminatory intent, amounts to persecutions as a crime against humanity.”[224]  This language, however, does not fully settle the issue.  At other points in the Blaskic judgment, the Appeals Chamber approvingly quoted the Trial Chamber, stating that “‘the crime of ‘persecution’ encompasses not only bodily and mental harm and infringements upon individual freedom but also acts which appear less serious, such as those targeting property, so long as the victimized persons were specially selected on grounds linked to their belonging to a particular community.’”[225]  The Appeals Chamber further quoted the Trial Chamber,


‘[i]t is the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on it its individual nature and gravity and which justifies its being able to constitute criminal acts which might appear in themselves not to infringe directly upon the most elementary rights of a human being, for example, attacks on property.  In other words, the perpetrator of the acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group.’[226] 


By focusing on the discriminatory nature of the act, as opposed to the act itself, the number of acts includable becomes limitless.  In Kvocka, the Trial Chamber noted that World War II trials and their findings that the denial to Jews of the freedom to marry, bank accounts, and educational and employment opportunities, constituted persecution, and thus, “acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent.”[227]  Such an approach allows any act to become persecution by sole reason of its discrimination application. 

The Appeals Chamber in Blaskic proposed a method for determining what acts may constitute persecution, but it does not fully address the issue.  The court simply rehashes previous statements that the court would first determine whether the act underlying the persecution constituted a crime against humanity in customary international law, which in turn must involve a denial or infringement upon a fundamental right granted under customary international law.[228]  The proposal suggests that not every act, even if committed with discriminatory intent, would amount to a persecution as a crime against humanity.[229]  The principle of legality, or nullum crimen sine lege, must be considered throughout the process,[230] in that the Tribunal may only convict someone of a crime if it was a violation of customary international law or international treaty law at the time of commission.[231]  But despite this attempted formulation, and its focus on the significance of the act itself in examining whether it amounts to persecution, the Appeals Chamber in Blaskic, and in Kordic and Cerkez, fail to state outright the role of discriminatory intent in the analysis of gravity.      

A proposed clarification, or perhaps a proposal, then, would be to consider the act itself, without any consideration of potential or alleged discriminatory intent, and determine whether it is of equal gravity as the enumerated crimes in Article 5.  If the act, standing alone, reaches the level of rape or murder, for example, then the act will constitute persecution when committed with discriminatory intent.  Allowing acts to become persecution simply by way of an evil intent behind them, is a dangerous precedent, and is tantamount to hate crime statutes, legislation that is not altogether popular in the United States.  Thus, the question remains, whether the act itself must be examined to determine whether it, standing alone, is of equal gravity as the other enumerated crimes in Article 5.

The second part of the definition of the crime of persecution, i.e., the mental element, also consists of several parts.  In addition to the three intents required for all crimes against humanity, that is, the knowledge of an attack, the knowledge that his criminal acts are a part of that attack, and the intent to commit the underlying act, the act must have been committed with the specific intent to discriminate on political, religious, or racial grounds.[232]  The Statute conjunctively lists the three grounds—“persecutions on political, racial and religious grounds,”[233] but nevertheless, the Tribunal rejected the notion that all three bases must be present in order to constitute persecution.[234]  Only one ground is necessary to establish a finding of persecution.[235]

The distinct mental element of persecution sets it apart from other crimes.  The crime of persecution, when considered amongst the other crimes against humanity, “derives its unique character from the requirement of a specific discriminatory intent.”[236]  For this discriminatory intent, “[i]t is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory; he must consciously intend to discriminate.  While the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one.”[237]  As with crimes against humanity in general, persecution does not require the existence of a plan or policy to discriminate, and if a plan or policy does exist, there is no requirement that the accused be aware that his persecutory act is a part of the larger plan or policy.

One important question is the manner in which the Prosecution may establish and the Trial Chamber may find discriminatory intent.  Documents and other incriminating direct evidence of the perpetrator’s intent are often lacking or difficult to obtain.[238]  The Prosecution has attempted to remedy this by inferring discriminatory intent for the individual act from the general discriminatory nature of the broader attack.  Early cases appeared to support this stance,[239] but later cases were more equivocal.  Although the Appeals Chamber in Kvocka stated that discriminatory intent may not be inferred solely from the discriminatory nature of an attack, it also stated that it “may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent.”[240]  Those circumstances include the “systematic nature of the crimes committed against a racial or religious group and the general attitude of the alleged perpetrator as demonstrated by his behaviour.”[241]  Inferring discriminatory intent for a specific individual act from the discriminatory nature of a larger attack may result in the correct conclusion for many of the acts committed within that discriminatory context, but not correct for others because “there may be acts committed within the context that were committed either on discriminatory grounds not listed in the Statute, or for purely personal reasons.”[242]  There must be evidence linking a discriminatory intent to the specific act rather than the attack in general, which, as explained above, does not need be discriminatory.[243] 

Despite its alleged reluctance, on several occasions the Tribunal has inferred discriminatory intent from larger contextual attacks.[244]  For example, in Krnojelac and Kvocka the Appeals Chamber found that beatings and detentions, respectively, were perpetrated largely against the non-Serb population, and therefore, it was reasonable to conclude that the individual acts were committed based on discriminatory purposes, involving the requisite discriminatory intent.[245]  Specifically, in Kvocka, the Appeals Chamber affirmed the Trial Chamber’s inferred discriminatory intent as a result of the accused’s “knowledge of the persecutory nature of the crimes, and his knowing participation in the system of persecution pervading Omarska camp.”[246]  In another example, in its legal finding as to General Krstic’s responsibility for alleged persecutions, the Trial Chamber found him guilty but did not address the specific intent of General Krstic, instead quickly summating in a one-sentence paragraph that “[t]he Trial Chamber has previously determined that a widespread and systematic attack was launched against the Bosnian Muslim population of Srebrenica from 11 July onwards, by reason of their belonging to the Bosnian Muslim group.”[247]  The Trial Chamber then concluded that the crime of persecution had been committed.[248]  Thus, despite language suggesting that discriminatory intent may not be inferred from the general discriminatory nature of the attack, it appears that a perpetrator’s discriminatory intent may be inferred from knowledge of the surrounding events. 

Another means through which the Tribunal has found intent is based on the perpetrator’s apparent tendencies.  In Kordic and Cerkez, the Appeals Chamber found the requisite discriminatory intent for persecutions, based on evidence “concerning Kordic’s political activities and inclinations, his strongly nationalist and ethnical stance, and his desire to attain the sovereign Croatian state within the territory of Bosnia and Herzegovina at seemingly any cost.”[249]  This suggests that one’s general racist, discriminatory attitude towards a certain people is enough to justify finding one’s individual acts are discriminatory, essentially discrimination per se.  This effectively shifts the burden of proof to the defense, having to prove that he committed the act with a non-discriminatory intent.  Burden-shifting tools such as this are anathematic to basic principles of criminal law.

            Notably, a discriminatory intent should not be confused with a “persecutory intent.”  The former is the signature element of persecutions as a crime against humanity whereas the latter is not required.[250]  The Appeals Chamber in Blaskic stated that “there is no requirement in law that the actor possess a ‘persecutory intent’ over and above a discriminatory intent.”[251]  In other words, “a showing of a specific persecutory intent behind an alleged persecutory plan or policy, that is, the removal of targeted persons from society or humanity, is not required to establish the mens rea of the perpetrator carrying out the underlying physical acts of persecutions.”[252]

            Discriminatory intent should not be confused or conflated with motive.  The Appeals Chamber in Kvocka distinguished motive from discriminatory intent, agreeing with the Trial Chamber that “crimes against humanity can be committed for purely personal reasons,”[253] and that “[p]ersonal motives, such as settling old scores, or seeking personal gain, do not exclude discriminatory intent.”[254]  Motive is only relevant at the sentencing stage for purposes of mitigation or aggravation; it plays no role in the finding of criminal intent.[255] 

The Kvocka approach seemingly discounts the express language of the Statute that requires the specific intent to discriminate on only three grounds: racial, religious, or political.  Crimes against humanity in general, because they do not require a discriminatory intent, may be committed for purely personal reasons.  Persecution, on the other hand, requires discriminatory intent, and the Kvocka should have specified that persecution may not be committed on the basis of purely personal reasons (unless, of course, those personal reasons were based on discrimination).  For example, if a Bosnian Serb killed a Bosnian Muslim on the basis of his ethnicity, say, in the name of a Greater Serbia, persecution certainly has occurred.  However, if the Serb took advantage of the chaos ensuing in a conflict and opportunistically killed the Muslim for purposes of an old debt, the basis for the act was not discriminatory, especially not on the basis of the three grounds.  Nonetheless, the Kvocka Appeals Chamber attempted to illustrate the interconnectedness of a discriminatory intent and the motive:


Edin Ganic only became a possible object of Zigic’s demands because he was detained as a Muslim and could offer no resistance, whereas Zigic was, as a member of the security forces, in a position of authority over him.  The discriminatory intent and the personal covetous motive are not mutually exclusive, rather closely interlocked.  In fact, the coercive demands for money from the detainees helped to create the atmosphere of insecurity, harassment and humiliation in the camps.[256] 


The situation described above occurred only after a Muslim had been detained on discriminatory grounds, and despite a potentially non-discriminatory personal motive for extorting money, the Appeals Chamber upheld the conviction.  This approach effectively eliminates the specific intent required in persecutions, and lowers the requisite mens rea to one of knowledge that the perpetrator’s position over the victim (which allows for the personal motive to be acted upon) was based on discriminatory grounds.  This suggests that even if the motivation was purely personal, but that the accused was aware of a larger discriminatory attack, then he would be considered to have the requisite discriminatory intent, despite his purely personal reasons for committing the specific act.  This is further reinforced by the notion that the crime of persecution targets the group rather than the individual, and thus, if one kills another for purposes of a debt or family reprisal, the individual has been targeted rather than the group.[257]

            What if discriminatory intent is only part of the reason for perpetrating the crime?  According to the Trial Chamber in Krnojelac, “[w]hile the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one.”[258]  This raises further questions.  Does “significant” mean more than 50-50?  If the intent to discriminate does not need to the be the “primary intent,” then other reasons may be the predominant reason, with discriminatory intent only being an additional thought, or perhaps even, an after-thought.  Taking this language to its natural conclusion, the Tribunal could, according to Krnojelac, find persecution when an individual decided to rob an individual for purely financial gain, as long as that individual harbored any discriminatory intent whatsoever.  Consider an armed Kosovar Albanian approaching another man on the street at night intending to rob him, unknowing that his intended victim was Serbian.  The Kosovar Albanian shouts at the man to give him his money, and the man responds in a distinct Serbian accent.  The Kosovar Albanian shouts again, and this time interjects a racial slur.  Does this constitute discriminatory intent, and is it “significant” enough to constitute persecution?  Because persecution is a unique crime distinct from other crimes against humanity, and other crimes in general, this question should be answered in the negative.  To constitute persecution discriminatory intent should be the primary intent; it need not be the only intent, but it should be the primary intent for perpetrating the underlying criminal act.




V.                 Justifications for Criminalizing Persecution: Cues from US Bias Crimes Legislation


The rich debate in the United States on the validity and wisdom of bias crimes legislation sheds light on the nature of persecution and its enforcement.  Although bias crimes are popularly referred to as “hate crimes,” such characterization is a misnomer and does not properly encompass the scope of these crimes.  Depending on the statute, the crux of a bias crime is prejudice rather than hate; that is, bias crimes may be committed without hate, and crimes may be committed with hate but are not necessarily a hate crime.[259]  Ill-will and animus toward the victim, however, is required in other statutes.

Like Article 5(h) of the ICTY Statute, all state and federal hate crimes statutes list categories of classes that may not be discriminated against—race, color, ethnicity, national origin, religion.[260]  Determining what classes to protect against should be considered with the larger social context in mind.[261]  Classes traditionally subjected to discrimination and victim to widespread antipathy are justifiable inclusions.[262]

Professor Frederick M. Lawrence separates bias crime statues into three distinct models: the “discriminatory selection” model, the “racial animus model,” and the “because of” or “by reason” formulations.[263]  The “discriminatory selection model” defines the crime in terms of the perpetrator’s discriminatory and intentional selection of the victim; the prejudice occurs at the selection process.  Hate, racial animosity, or any other reason need not play a role in the selection as long as the victim was selected on the basis of that particular characteristic.  The “racial animus model”[264] defines crimes in terms of the perpetrator’s prejudicial motivation in selecting the victim.  The perpetrator selected the particular victim on the basis of racial animosity towards that victim’s class.[265]  The third model tends to blur the distinction between the first two models, and statutes within this category are not always clear what and how they will punish under their statutes.  Under this categorization, the ICTY has taken up the discriminatory model approach. 

In Wisconsin v. Mitchell, the United States Supreme Court upheld a state bias crimes law based on the discriminatory selection model.[266]  Under Wisconsin law, aggravated battery carried a maximum sentence of two years, but the statute called for a penalty-enhancement for crimes committed with animus, which added another five years to the maximum sentence for a total of seven years.  Wisconsin argued that the reason for selecting the victim, such as racial animosity or ill-will toward the group, was irrelevant.  The only relevant factor was whether he selected the victim based on a listed class.  The defendant argued that the statute violated the First Amendment by punishing thoughts, which the Wisconsin Supreme Court had previously held.[267]  The Court ultimately upheld the law, holding that the statute was aimed at conduct not protected by the First Amendment, but it is not altogether clear whether the Court wholeheartedly accepted the discriminatory model.[268] 

In the only case in the United States found by this author that involves accomplice liability for a hate crime, the Wisconsin Court of Appeals vacated a hate crime penalty enhancement because the jury had not been properly instructed on that theory of party-to-a-crime liability.  In State v. Yang, a group of four Asian men shouted racial epithets at a black man as he exited a convenience store.  They attacked the man and continued the racial slur onslaught.  Other Asian individuals then converged on the scene with the group eventually growing to around fifteen to twenty.  Several in the group participated in the beating, including the defendant Yang, who was perhaps the ninth individual to arrive.  Throughout the attack, including after Yang arrived, racial slurs continued.

The jury found him liable for the hate crime penalty enhancement, which increased his misdemeanor to a felony punishable for a maximum of two years of imprisonment.  Yang argued that the jury instructions improperly allowed the jury to find him liable for the penalty enhancement absent a finding that he was aware that the victim had been selected on discriminatory grounds.  The Wisconsin Court of Appeals raised the issue of whether an accomplice may be held liable for a hate crime under the “natural and foreseeable consequences” doctrine where the accomplice was unaware of the discriminatory selection, which the State had argued was possible, but the court did not rule on the issue.  Instead, the court focused solely on the jury instructions and held that they allowed the jury to find Yang liable for the penalty enhancement regardless of whether he was aware of the discriminatory selection.  Thus, the theory of vicarious liability had not been presented to the jury but the instructions potentially allowed the jury to find Yang liable through such a theory.[269]  Yang, according to the court, might have been found liable on the sole basis that one of his co-perpetrators had selected the victim based on race despite Yang’s unawareness of the discrimination.

The court in Yang did not expressly disallow liability for hate crimes on a theory of vicarious liability, but the court rightfully recognized the issue.  When considering whether to hold an accomplice liable for the “natural and probable consequences” of, for example, a robbery, the court assesses the situation objectively.  If two armed individuals walked into a liquor store, is it reasonably foreseeable—an objective standard—that one of the individuals would discharge his weapon, killing the cashier?  Under traditional accomplice liability theory, the answer is yes.  This is a foreseeability that can be objectively measurable.  The non-killing participant in the robbery could have foreseen this result as being a natural and probable consequence of the original crime, and therefore, that individual is held responsible as a direct perpetrator for the additional crime.

But should we apply this same logic to hate crimes, where a co-perpetrator subjectively harbors discriminatory thoughts?  Is it objectively foreseeable that the partner-in-crime would discriminatorily select another in the commission of a crime?  To answer this question the court must consider the direct perpetrator subjectively, that is, it must add personality and context to the individual’s thoughts, and perhaps his actions.  The metamorphosis from an armed robbery to a murder is not difficult for a reasonable person to comprehend; the transition from an armed robbery to murder because of the victim’s race is highly abnormal.  The latter situation is highly atypical, and thus, from an objective standpoint, the commission of a hate crime would never be a natural and probable consequence of another crime unless the court looks into the mind of the direct perpetrator.  This leads back to a subjective standard.  Therefore, a defendant would be liable not only for his accomplice’s direct acts but also for the reasons his accomplice committed those crimes.  A defendant could be held liable for his accomplice’s thoughts. 

But why are hate crimes, and by comparison, the crime of persecution, so bad and must be punished?  Why should they be considered separate from their underlying criminal offense?  Bias crimes are often assumed to be worse than other crimes.  The murdering of a liquor store owner to get at his cash register receives less public attention than when a group of young white men attack and kill an African-American, or when a neo-Nazi assaults a Jewish man while shouting racial epithets.  We generally perceive crimes on the basis of skin color, religious beliefs, national origin, or any other immutable characteristic to be morally reprehensible.  Those crimes are often considered more serious than the same crime when committed in the absence of prejudicial motivation.  Should this be the case?

Proponents defend bias crimes legislation on several grounds.  First, the perpetrator’s motive makes him more culpable.  We regularly equate one’s motive with culpability; e.g., many perceive a husband facilitating his terminally-ill wife’s voluntary poisoning as being less culpable than the same husband killing his healthy wife for the insurance proceeds.[270]  Second, bias crimes may result in greater physical and psychological impact on the victim.  The victim may suffer not only from an increased physical injury, usually due to the violent and group-based nature of bias crimes, but also from severe psychological problems.[271]  The victim might become more isolated, reserved from society, lose relationships, etc.  Third, bias crimes greatly affect the group to whom the victim belonged.[272]  A bias crime “attacks the victim not only physically but at the very core of his identity.  It is an attack from which there is no escape.”[273]  When an African-American man is targeted and attacked by a group of white men, African-Americans in that community may feel threatened and vulnerable and begin to fear all whites, or may alter their lifestyle, such as not shopping, eating, or walking in that neighborhood.  African-Americans will feel as though they were attacked personally, because a fellow member of their class was attacked, and the arbitrary nature of the crime suggests that it easily could have been them instead of the unfortunate victim.  Additionally, members of that class will feel a reverse collective animosity, in that African-Americans will feel angry towards all whites even though only one or a few individuals perpetrated the heinous crime.  Fourth, bias crimes affect society as a whole.  Bias crimes “can frighten and humiliate other members of the community” and “reinforce social divisions and hatred.”[274]  Individuals will withdraw from community activity, public interaction will decrease, and conflicts may erupt.  The Oregon Supreme Court, in upholding a bias crime statute, stated: “[Hate crime] creates a harm to society distinct from and greater than the harm caused by the assault alone.  Such crimes—because they are directed not only toward the victim but, in essence, toward an entire group of which the victim is perceived to be a member—invite imitation, retaliation, and insecurity on the part of persons in the group to which the victim was perceived by the assailants to belong.”[275]  Other rationales given for criminalizing bias crimes include moral education and their greater deterrence factor.

Professor Danner advances another (and unique) justification for punishing bias crimes, arguing that bias crimes are legitimately punishable when seen through the prism of crimes against humanity.  Rather than advocating the wrongfulness-culpability model of punishment, which focuses on the individual motivations for the act, she focuses on the individual’s “choice to act in a particular way within his social context.”[276]  Danner argues that the perpetrator who acted discriminatorily, regardless of his motivations, should be punished when he knew how his acts fit within the larger social context and how those acts would affect society as a whole. 

All of these reasons, whether successfully argued or not, pertain to justifying the punishment of bias crimes in general.  Many of the same reasons are easily applicable to justifying the criminalization of persecution.  These reasons do not, however, speak to the punishment of the individual.  Justifications for criminal punishment generally fall within two schools of punishment theory: retribution and “consequentalist.”[277]  Retribution theory focuses on making the criminal pay for his crime, essentially the eye-for-an-eye rationale.  The “consequentalist” theory of punishment seeks to improve the overall well-being of a society in a utilitarian fashion.[278]  This theory encompasses four methods in obtaining the maximum utility: general deterrence, specific deterrence, rehabilitation, and incapacitation.[279]

When taking these theories of punishment into account, we see that holding one liable for another’s discriminatory act simply because the direct perpetrator’s acts were foreseeable to the other does not bode well with any of these theories.  If society condemns discriminatory behavior and requires retribution, then society will improperly hold one responsible for a crime he did not intend.  Two methods of the consequentialist theory—rehabilitation and incapacitation—similarly fail.  An individual who does not harbor bias (or hate) towards certain groups cannot be rehabilitated—there is no rehabilitation to occur!  And incapacitation will not serve any purpose because it is not likely, based on the unintended discriminatory consequences of his crime, that society will be any safer from discriminatory-based crimes than before incarceration. 

The methods of deterrence more, although still extremely limited, promise for advocates of vicarious liability for bias crimes and persecution.  Aspiring criminals may be dissuaded from engaging in any criminal behavior for fear that their co-perpetrator may commit a crime on discriminatory grounds.  Although highly unlikely, these individuals might stay at home altogether.  The same holds true for specific deterrence.  If someone is punished for the hate crime or persecution by another, that person may forego any criminal behavior for fear of future penalty enhancement due to his discriminatorily-motivated partner-in-crime.  Both specific and general deterrence, however, have very limited utility with respect to punishing an individual for the thoughts of another. 




VI.              The Convergence of JCE Liability and Specific Intent Crimes


Specific intent crimes, obviously, require a specific intent.  The crimes of persecution (as a crime against humanity) and genocide are two specific intent crimes that have figured prominently in the development of the ICTY.  Because the Tribunal has considered the crimes to come from the same genus, in that the crux of both crimes is the intent to target certain groups simply based on their belonging to such group,[280] both crimes are examined here.  In fact, “from the viewpoint of mens rea, genocide is an extreme and more inhuman form of persecution.”[281] 

As discussed above, the crime of persecution requires a discriminatory intent, based on political, racial, or religious grounds.  This mens rea is higher than for other crimes against humanity, but lower than that required for genocide.[282]  Genocide requires the intent to destroy, in whole or in part, an entire ethnic group.[283]  As noted above, joint criminal enterprise liability requires the intent to participate in that enterprise.  In addition to this intent, does a participant also need to share the specific intent for specific intent crimes, before liability attaches to such crimes?

            The Appeals Chamber in Kvocka did not deem it relevant to distinguish between the intents, stating that “in the context of the case, the intent to contribute to the joint criminal enterprise and discriminatory intent is one and the same thing.  The same conclusion must then be reached when determining whether the facts of the case could have led a reasonable trier of fact to conclude that Kvocka shared the discriminatory intent of the perpetrators of the crimes committed in furtherance of the joint criminal enterprise.”[284]  The Appeals Chamber agreed with the Trial Chamber’s finding that Kvocka had the intent to contribute to the JCE, and therefore, he necessarily had the intent to discriminate.[285]  When Kvocka apparently asserted that “the Trial Chamber erred by not systematically analysing the discriminatory nature of the crimes committed in Omarska camp,” the Appeals Chamber referred to the finding of the discriminatory intent of the joint criminal enterprise, thus apparently satisfying the requisite mens rea.[286]  According to the Kvocka judgment, the prosecution does not need to establish a discriminatory intent for each single act (if there are multiple acts), as long as it proves that the joint criminal enterprise was discriminatory and that the individual joined the joint criminal enterprise.  This leads to another question: does the original purpose of the JCE need to have been discriminatory in nature, or does the JCE simply need to have committed acts discriminatorily?    

The Kvocka Appeals Chamber addressed this issue of whether a participant in a JCE needs to share the discriminatory intent for special intent crimes, and affirmed the Trial Chamber’s holding that,


[w]here the crime requires special intent … the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator.  However, if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent.  This shared knowledge too can be inferred from the circumstances.  If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on ‘political, racial or religious grounds’.  If the criminal enterprise entails killing members of a particular ethnic group, and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds.  Thus, a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group.[287] 


Kvocka illustrates the distinction between co-perpetratorship and aiding and abetting.  For first and second category JCE, participants “must be shown to share the required intent of the principal perpetrators.  Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise.”[288]  But “[i]f the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime.”[289]

            With respect to the extended form of JCE the Prosecution must show two distinct intents, each from a different person.  First, the direct perpetrator of the crime must have possessed the specific discriminatory intent, and second, the accused must have been “aware” that the crime was a natural and foreseeable consequence of the agreed-upon joint criminal enterprise.[290]  The meaning of foreseeability, i.e., whether it connotes a mere “possibility” of the crime occurring or whether “certainty” is required,[291] has been resolved by the Trial Chamber in Krstic, stating that the Prosecution only needs to prove that “the accused was aware that the further crime was a possible consequence” of the agreed upon JCE.[292]



A.     Relationship between JCE and Genocide


International criminal lawyers and human rights activists, along with public, generally perceive genocide to be the most heinous of all crimes.  The term alone evokes images of unspeakable acts and mass graves from Rwanda, Bosnia, and Sudan.  Because of its powerful connotation, States even reserve the word for very limited cases, fearing that the mere mention of genocide will force them to take positive action.[293]  With such a level of seriousness, both through the prism of law and in the eyes of the public, is genocide compatible with JCE liability? 

In Stakic the Prosecution sought conviction of genocide on the basis of the third category of JCE.  The Trial Chamber expressly rejected this basis of liability as being proper for genocide, stating, “the concept of genocide as a natural and foreseeable consequence of an enterprise not aiming specifically at genocide does not suffice.”[294]  The Trial Chamber expounded further:


Conflating the third variant of joint criminal enterprise and the crime of genocide would result in the dolus specialis being so watered down that it is extinguished.  Thus, the Trial Chamber finds that in order to ‘commit’ genocide, the elements of that crime, including the dolus specialis must be met.  The notions of ‘escalation’ to genocide, or genocide as a ‘natural and foreseeable consequence’ of an enterprise not aimed specifically at genocide are not compatible with the definition of genocide under Article 4(3)(a).[295] 


The Trial Chamber subsequently acquitted Stakic of genocide under the extended form of JCE.[296]

The Trial Chamber in Brdjanin reasoned similarly but the Appeals Chamber overruled that decision, holding that an accused may be held liable for any crime, including those with a specific intent requirement, that is beyond the agreed upon joint criminal enterprise provided that the relevant standard is met, i.e., that the crime is a foreseeable and natural consequence.[297]  The Appeals Chamber explained,


[a]n accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed.  Rather, it is sufficient that that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed.  For example, an accused who enters into a joint criminal enterprise to commit the crime of forcible transfer shares the intent of the direct perpetrators to commit that crime.  However, if the Prosecution can establish that the direct perpetrator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence.  Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent.[298]


Interestingly, the Appeals Chamber acknowledged that third category JCE is a “lower mens rea standard” than the other two forms.[299] 

The Appeals Chamber reiterated its characterization of third category JCE liability, which requires the Prosecution to “prove only awareness on the part of the accused that genocide was a foreseeable consequence of the commission of a separate agreed upon crime.  This awareness of the likelihood of genocide being committed is not as strict a mens rea requirement as the specific intent required to establish the crime of genocide.”[300]  This adherence to mere “awareness,” and the Appeals Chamber’s admission that this type of mens rea does not amount to the “specific intent” for genocide, strains credulity.  Genocide will always subsume many individual acts; genocide, by definition, comprises hundreds or perhaps thousands of individual crimes: rape, murder, expulsion.  Each of those instances generally falls within one of the other crimes enumerated by the ICTY Statute, most likely under crimes against humanity or violations of the laws and customs of war.  Whenever an individual commits an individual act within a JCE, under the Brdjanin reasoning he may be found guilty of genocide without intending any such event as long as genocide was a foreseeable consequence of the JCE. 

            In explaining its decision the Appeals Chamber referred to other forms of criminal liability that do not require specific proof of the intent to commit the actual crime, namely, aiding and abetting, which merely requires “knowledge on the part of the accused and substantial contribution with that knowledge.”[301]  The Appeals Chamber further explained that with respect to aiding and abetting persecution, “[a]n accused will be held criminally responsible as an aider and abettor of the crime of persecution where, the accused is aware of the criminal act, and that the criminal act was committed with discriminatory intent on the part of the principal perpetrator, and that with that knowledge the accused made a substantial contribution to the commission of that crime by the principal perpetrator.”[302]  This reasoning is flawed.  It uses aiding and abetting, which is a less direct means of holding an accused responsible, and thus carrying a lesser sentence, to justify a “lower” mens rea for specific intent crimes that go beyond an agreed upon joint criminal enterprise.  As seen from the quote above, aiding and abetting requires a “substantial contribution” before liability attaches, whereas no such requirement is present in the direct forms of commission, including participation in a joint criminal enterprise (which is considered a form of “commission”).  Aiding and abetting may have a “lower” mens rea but the “substantial contribution” requirement serves as a threshold for attributing responsibility.

            The judgments in Krstic contribute further confusion.  The Trial Chamber convicted Krstic on grounds of JCE liability, holding that genocide was a natural and foreseeable consequence of a joint criminal enterprise to ethnically cleanse Srebrenica.  The Appeals Chamber overruled Krstic’s guilt of genocide (and persecution[303]) on the basis of being a co-perpetrator, stating, “all that the evidence can establish is that Krstic was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings.  This knowledge on his part alone cannot support an inference of genocidal intent.”[304]  Thus, awareness of others’ intention to commit genocide may not be used as a substitute for the requirement that the perpetrator must possess genocidal intent.  The Appeals Chamber continued, “[g]enocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent.  Convictions for genocide can be entered only where that intent has been unequivocally established.”[305]  There must be actual proof that the perpetrator possessed the genocidal intent.  Although the Appeals Chamber found Krstic not liable as a co-perpetrator for genocide and persecution, it did find him guilty as an aider and abettor of those crimes.[306]  

The Appeals Chamber appears to contradict its base principles.  It confirms the heinousness of genocide and reserves those findings of guilt for those truly responsible, yet in some instances it has allowed third category JCE liability for specific intent crimes.  This practice is dangerous.  Attributing mass responsibility would result in a watering down of the crime itself, as a theory and in practice, and would also lessen the direct perpetrators’ liability by spreading liability amongst those not actually responsible.   



B.     Relationship between JCE and Persecution


Despite the ICTY’s repeated efforts to provide otherwise, the third category joint criminal enterprise is akin to negligence (or perhaps recklessness).  For example, imagine a group of three armed insurgents, A, B, and C, attempting to forcibly remove civilians from a local village.  In the process a member of the group, A, gets into a scuffle with and shoots and kills a civilian, X.  If the common plan of the group was criminal, then they can be said to have had a joint criminal enterprise.  Assuming the common plan in this instance was the complete eradication of the population, all three individuals would be responsible for the killing of X because each of them intended to eradicate the population of that particular village, including X.  This is the classic first category joint criminal enterprise.  

If the plan was the forcible removal of the local population, again we would have to first determine whether the common plan had as its purpose an illegal enterprise, thus constituting a joint criminal enterprise, before analyzing whose acts might be attributable to whom.  For purposes of this discussion, assume the forcible removal in this instance was illegal and a joint criminal enterprise existed.  B and C are still responsible for the killing of X by A if that act was a natural and foreseeable consequence of the original common plan—i.e., the forcible removal of civilians.

But what if the plan consisted of a crime with a general intent, and the supposed natural and foreseeable crime was a specific intent crime, such as persecution or genocide.  Using the same hypothetical, the prosecution nevertheless would wish to hold B and C responsible under JCE liability.  B and C intend to forcible remove the civilian population when in the process A commits an act outside the scope of that common plan.  But is it foreseeable that your fellow group member will commit a crime with a specific intent?  Is it foreseeable that during the process of removal A will rape, murder, or commit an inhumane act based on discriminatory means?  Such an analytical process requires that the court look into the mind of a criminal, determine what he was thinking at the moment of commission, and decide whether his thinking was foreseeable to a non-perpetrating partner. 

Even if B and C attempted to stop A from committing some persecutory act, they would still be held responsible if that act was foreseeable.  B and C are thus liable for what goes on in A’s head, not merely for what acts he commits.  Analytically, it is much easier to attach liability to another’s acts if those acts are based wholly on physical perpetration; only one step is required.  On the other hand, attributing responsibility for one’s thoughts first requires the attribution of the direct perpetrator’s acts, and also requires the attribution of the direct perpetrator’s thoughts.  The extra step required stretches the doctrine thin.

            The Tribunal has considered the case of a biased indirect perpetrator and an unbiased direct perpetrator with respect to the crime of persecution.  In Stakic, the Trial Chamber held that an indirect perpetrator (but still considered a co-perpetrator for purposes of JCE liability) may be held liable for the direct perpetrator’s persecutory acts if the accused possessed discriminatory intent in relation to the actual attack.  Whether the direct perpetrator acted with or without discriminatory intent is irrelevant because “the actor may be used as an innocent instrument or tool only.”[307]  Requiring proof of discriminatory intent by both the indirect and direct perpetrators, especially in the context of many acts, “would lead to an unjustifiable protection of superiors and would run counter to the meaning, spirit and purpose of the Statute.”  In these instances the Trial Chamber held that “proof of a discriminatory attack against a civilian population is a sufficient basis to infer the discriminatory intent of an accused for the acts carried out as part of the attack in which he participated as a (co-)perpetrator.”[308]  This tends to run counter to individual criminal responsibility.

            What, then, if the direct perpetrator was biased and his co-perpetrator was unbiased, in that he did not agree to or intend for the persecutory act to be committed?  Again, holding the co-perpetrator responsible for the direct perpetrator’s thoughts—that is, the discriminatory basis for directing the crime toward a specific victim—is a dangerous precedent.  Persecution should be reserved for the most culpable individuals who harbor ill-will and hatred towards a group; the individuals who then translate that hurtful animosity into action.  Society must denounce such activity as the worst of the worst, but it must be careful to overcast the net of liability.  Doing so jeopardizes the principle of individual culpability. 




VII.           Suggestions for Improvement


The introduction of the joint criminal enterprise doctrine with the last decade and its subsequent increased use, especially over the past few years, has proved to be a valuable tool in the Prosecutor’s arsenal.  Individuals have increasingly been charged through their participation in such criminal enterprises rather than through other modes of participation.  In fact, joint criminal enterprise has supplanted command responsibility as the charge of choice, even in cases where a command structure is present.  The doctrine of JCE took several years to catch on, during which time the prosecution continued to pursue command responsibility as their means to liability.  But soon thereafter the prosecution realized the powerful notion of a JCE and began indicting suspected criminals through command responsibility and a joint criminal enterprise.[309]  The Prosecution has flipped their favorite theories of liability, and now often seeks prosecution through participation in a joint criminal enterprise rather than through command responsibility.   

            In order to continue in a legitimate manner, the ICTY should seek to halt its expansion of the joint criminal enterprise doctrine, especially the third category.  Although there is no stare decisis of the ICTY(?), the jurisprudence of the ICTY most likely prevents it from altering its present standpoint.  The birth of the ICC, however, presents a new opportunity to preclude certain aspects of this expansive doctrine from gaining a foothold again in international criminal law.  The doctrine itself is not altogether incompatible with international criminal law, or even with the domestic criminal law of the world’s major legal systems, but it must be modified and clarified before supporting its application. 



A.     The Significant Contribution Requirement


The doctrine of joint criminal enterprise would be strengthened and would gain legitimacy if it required one’s participation to constitute a substantial contribution to the enterprise.  The jurisprudence of the ICTY currently acknowledges that the second category of JCE does require a substantial contribution to the criminal enterprise.  The first and third categories, however, have no such restriction.  This absence poses a serious problem to the issue of causation.  Suppose a 13-year old aspiring insurgent, A, wishes to topple his current regime.  Throughout his young life he has experienced oppression at the hands of his autocratic ruler.  In the past few years a budding insurgency has grown into a formidable opposition and it has piqued his interest.  The opposition is underground, making joining somewhat difficult.  Not to be undeterred, A goes to the local café known for radicalism and, through a series of introductions, meets an individual with scant information on joining the insurgency.  A then follows the instructions and meets D, a local leader responsible for a small neighborhood.  D has approximately ten fighters under his command.  After testing A’s willingness to fight and dedication to the cause, D orders A to monitor police movements from a rooftop and report back to D everyday.  The question, then, is at what point has A become liable for the acts of the insurgency?  Is it when he actively searches to join the movement?  Is it when he has met with D and begun his initiation?  Is it when he first takes an order from D, or when he first steps onto the rooftop for his first assignment?  And what specific acts is he then responsible for?  Is he responsible only for the criminal acts resulting from his rooftop information, or for all the acts of D’s cohorts?  What about the insurgency as a whole—is A responsible for acts committed several hundred miles away, if those acts are undertaken with the purpose of overthrowing the current regime?

            Testing the expansive nature of joint criminal enterprise liability highlights problems with its current structure.  Theoretically, the doctrine could attribute liability to A not only for the acts of D and his associates but also for the acts of all insurgents fighting for the same cause.  Few proponents of the doctrine, as well as ICTY jurisprudence, have expanded the doctrine to such an extent, however, the lack of current limits does not preclude such expansion, perhaps to a lesser extent, but still representing a significant departure from a manageable doctrine.  Thus, there are two related factors involved in this scenario: the time at which liability attaches, and the specific acts involved at the moment liability attaches.[310]

            Requiring a significant contribution to the enterprise would leave A free from liability until at least the point when he took up position on the rooftop.  Before then he had not provided any assistance to the enterprise.  The analysis would then require whether monitoring police movements from a rooftop constituted a “significant contribution” to the enterprise, which in turn requires the defining of the “joint criminal enterprise.”  At the outset of the hypothetical, the joint criminal enterprise was characterized as being the overthrowing of the regime.  Working with this alleged purpose, standing atop a rooftop may be considered too tenuously connected to activities taking place several hundred miles away, even if those activities are undertaken with the goal of overthrowing the regime.  But the rooftop lookout is closely related to the acts of D and his cronies, and therefore, when the criminal enterprise is narrowly defined, the same acts may be considered “significant” than when the criminal enterprise is broadly defined.  The significance of the acts is directly related to the broadness/narrowness of the purpose of the alleged joint criminal enterprise.  In other words, monitoring the rooftop is a significant contribution when the purpose of the joint criminal enterprise was the overtaking of Neighborhood X, but the same act is not a significant contribution when the purpose was the overthrowing of the central government. 



B.     The Third Category of JCE Should Not Be Used for Specific Intent Crimes


Another modification to the ICTY’s concept of a joint criminal enterprise that would strengthen the doctrine’s legitimacy would be to preclude the application of third-category JCE liability to specific intent crimes.  In the United States, whenever an individual commits a heinous crime against another individual based simply on discrimination, whether race, nationality, religion, or sexual orientation, the community, rightfully so, condemns such acts as contrary to humanity.  Proponents of hate crimes statutes take to the streets, advocating for tougher laws, and legislators debate the merits of such legislation.  Few would disagree that violent acts perpetrated against another solely due that person’s distinguishing characteristics are morally reprehensible.  This is not the issue.  The issue is the legislating against thought.  The law prohibits certain acts—e.g., you may not commit assault and battery, you may not kill, you may not rape.  The law, however, does not prohibit certain thoughts; to do so would be tantamount to an Orwellian legal system.  As a result, a neo-Nazi passing by an African-American along the street may wish bad things to the unknowing passerby simply because of the man’s skin color; in fact, the neo-Nazi may even wish to perpetrate that evil himself.  But absent an overt act, the neo-Nazi has committed no crime—this is a fundament of criminal law.  The United States’ strict adherence to freedom of speech has provided outlets to such thoughts, unlike countries such as Germany, which have dramatically different historical reasons for prohibiting hateful speech.

What, then, might occur if a white man, with no racist tendencies, became involved with a small group of neo-Nazis, which then conspires to rob a liquor store?  The group enters the liquor store, and after muttering racist remarks, one of the neo-Nazis abruptly shoots the African-American store clerk.  The confused others quickly pack up the cash and leave the store.  Who is liable, and for what?

Under U.S. law, it would be reasonably foreseeable that an armed group entering a store would shoot and kill a store clerk, and thus, all those participating would probably be responsible for the killing even if that was not within the original purpose of the plan to rob.  If killing the store clerk was planned, then all would be responsible, including the non-racist, regardless of who actually pulled the trigger.  In this case, they all intended to kill the clerk.  The crime of murder, therefore, is not a problem for attributing liability.  What about the crime of murder with a discriminatory purpose?  Such a crime is what is proscribed in the ICTY Statute, under the rubric of persecution as a crime against humanity.  Would the non-racist also be responsible for the heightened crime of murder with a discriminatory purpose, that is, the crime of persecution within the language of international criminal law? 

The jurisprudence of the ICTY currently leans towards allowing this attribution.  The problem with such attribution is the transferring of thought from one individual to another.  Not only is the act transferred—i.e., the pulling of the trigger and resultant killing—but the thoughts which were in the head of the killer are also transferred.  Depending on what the killer was thinking at the moment of commission, a separate individual may be liable for both murder and for persecution.  If the killer’s mind is clear, then the other individual will be charged with murder.  If the killer’s mind possessed discriminatory thoughts, the other individual is liable for persecution as well.  Specific intent crimes such as persecution overstretch the third category of JCE to its breaking point.  Attributing responsibility to an individual based on another individual’s thoughts is contrary to the fundamentals of individual criminal responsibility.  The third category of JCE liability, therefore, should not be used as a vehicle for attributing liability for specific intent crimes.




VIII.        Conclusion


The crime of persecution in international criminal law, especially at the ICTY, is rightfully criminalized.  Few other crimes generate such popular condemnation.  There are even fewer critics of the criminalization of persecution, unlike the debate in the United States over the merits of bias crimes legislation.  Persecution is particularly abhorrent because it strikes at humanity.  Murder, rape, torture: these are all odious crimes, but committing those crimes simply because the individual is Christian, Muslim, Hutu, Tutsi, black, white, Asian, heightens the level of atrociousness.  But despite the widespread acceptance of a crime not generally seen in municipal law, international criminal tribunals should not be quick to open the floodgates of liability.  The ICTY is in danger of doing just that. 

Joint criminal enterprise liability is a new animal in international criminal law.  It does have its roots in other doctrines of the past, thus adding to its credibility, but it is far from a one-hundred percent sound and warranted legal principle.  Hopefully, the International Criminal Court will work out some of the inconsistencies of the doctrine and clarify other points.  The third category of JCE liability especially suffers from flaws, most notably, the application of this extended form of liability to specific intent crimes.  Relying on this doctrine does facilitate convictions for serious crimes such as persecution and genocide, but they also “result in discounted convictions that inevitably diminish the didactic significance of the Tribunal’s judgments and that compromise its historical legacy.”[311]  An oft-cited purpose of international criminal tribunals is the reconciliation they promote.  As the opening quote to this article states, “promoting reconciliation and restoring true peace” must be at the forefront of every judgment and every judicial institution.  If justice is not seen to be done by those watching their friends, family, and national heroes on trial, then resentment will ensue and credibility for the legal process will wane.  Extending liability to another based on the thoughts of the direct perpetrator does not resonate with many peoples’ notions of individual responsibility.  Without the people’s acceptance of their leaders’ and brethren’s convictions, the future of a post-conflict society remains unstable.  Hero-worship of adjudicated criminals does nothing to help the stabilization and reconstruction of fragile societies.  The ICTY itself, perhaps the institution most capable and responsible for maintaining the balance between personal liability and justice, said it best:


The expansion of mens rea is an easy but dangerous approach.  …  Stretching notions of individual mens rea too thin may lead to the imposition of criminal liability on individuals for what is actually guilt by association, a result that is at odds with the driving principles behind the creation of this International Tribunal.[312]


It is hoped that the ICTY heeds its own wise call, and reins in the unwarranted expansion of culpability.


[1] Report of the ICTY, UN GAOR/SCOR, 49th Sess., UN Doc. A/49/342-S/1994/1007, at ¶ 16 (1994).

[2] See generally Barrington Moore, Jr., Moral Purity and Persecution in History (2000).

[3] Moore, supra note 2, at 3.

[4] See generally Kai Ambos, Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis – From Nuremberg to The Hague, in Substantive and Procedural Aspects of International Criminal Law 5, Vol. I (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000).

[5] Andrew Clapham, Issues of complexity, complicity and complementarity: from the Nuremberg trials to the dawn of the International Criminal Court, in From Nuremberg to The Hague: The Future of International Criminal Justice 30, 31 (Philippe Sands ed., 2003).

[6] Clapham, supra note 5, at 31.

[7] Clapham, supra note 5, at 32.

[8] Clapham, supra note 5, at 32.  (Clapham quotes the Nuremberg Judgment, which stated: “The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from general principles of justice applied by jurists, and practised by military courts.  This law is not static, but by continual adaptation follows the needs of a changing world.  Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.”  Nuremberg Judgment, Cmd 6964, HMSO, London, p.40.)

[9] Treaty of Versailles, Articles 228(1), 229(1), (2).  Germany was supposed to cooperate and hand over certain identified individuals under Articles 228(2) and 230, but it was uncooperative and few German nationals ever faced justice, either inside or outside Germany. 

[10] Richard Overy, The Nuremberg trials: international law in the making, in From Nuremberg to The Hague: The Future of International Criminal Justice 1, 3 (Philippe Sands ed., 2003). 

[11] Overy, supra note 10, at 3.  The Versailles Peace Treaty of 28 June 1919 stated, in Article 227(1): “The Allied and Associated Powers publicly arraign William II of Hohenzollern, former German Emperor, for a supreme offence against international morality and the sanctity of treaties.”  Under Article 227(2), an international tribunal was to be set up to try the Kaiser, but he fled the country and was afforded refuge in The Netherlands.

[12] Allison Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 110-120.  Danner and Martinez also note that the Appeals Chamber’s judgment in Tadic referred to this concept in a variety of names, and used them interchangeably.  They called it: “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” “common concerted design,” “criminal enterprise,” “common enterprise,” “joint criminal enterprise.” (citing Prosecutor v. Brdjanin and Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ICTY Trial Chamber, at ¶ 24 (June 26, 2001)).

[13] See “‘Crime of Opinion’ is One Thing, But War Crime is Another,” by Bogdan Ivanisevic, Human Rights Watch, this is commentary, and was published in Danas (Belgrade) on 11 Feb. 2005, http://hrw.org/english/docs/2005/02/11/serbia10173.htm (last visited on 1 Dec. 2005).

[14] The Special Court for Sierra Leone indicted Charles Taylor for his participation in a joint criminal enterprise that had as its purpose “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone,” which included the murder, abduction, forced labor, physical and sexual violence, the use of child soldiers, and the destruction of civilian structures.  Notably, the indictment alleged that these acts were either within the joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise.  Prosecutor against Charles Ghankay Taylor, Indictment, The Special Court for Sierra Leone, Case No. SCSL-03-I (March 3 2003), available at http://www.sc-sl.org/taylorindictment.html (last visited 1 Dec. 2005).

[15] William A. Schabas, The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1032 (2003).

[16] Shane Darcy, An Effective Measure of Bringing Justice?: The Joint Criminal Enterprise Doctrine of the International Criminal Tribunal for the Former Yugoslavia, 20 Am. Int’l L. Rev. 153, 168-69 (2004) (noting that the first two indictments of Prosecutor v. Milosevic did not include such language, but the second amended indictment did include an allegation of participation in a joint criminal enterprise and that each individual was individually liable for transpired acts; the August 2001indictment alleged his participation in a joint criminal enterprise with Bosnian Serb military and civilian leaders).

[17] See, e.g., Limaj indictment.

[18] See Prosecutor v. Brdjanin and Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ICTY Trial Chamber, at ¶ 24 (June 26, 2001); Prosecutor v. Ojdanic, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, ICTY Appeals Chamber, at ¶ 36 (May 21, 2003).

[19] Danner & Martinez, supra note 12, at 110-120.  Danner and Martinez separate World War II-era jurisprudence into three categories: “common plan liability” or “common design liability,” conspiracy, and criminal organizational liability.

[20] Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth-Century Experience 46 (1999).

[21] Ball, supra note 20, at 45.

[22] Great Britain was even calling for summary executions as late as April 1945.  In a letter sent to FDR on April 23, 1945, a British aide wrote, “[His Majesty’s Government is] deeply impressed with the dangers and difficulties of this course [judicial proceedings], and they think that execution without trial is the preferable course.  [A trial] would be exceedingly long and elaborate, [many of the Nazis’ deeds] are not war crimes in the ordinary sense, nor is it at all clear that they can properly be described as crimes under international law.”  Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial 8-9 (1971).

[23] Ball, supra note 20, at 46.

[24] Ball, supra note 20, at 46.

[25] Ball, supra note 20, at 48.  The British disapproved of the plan and still sought summary executions.  Churchill had even called for summary executions as late as April 1945.

[26] Danner & Martinez, supra note 12, at 113 (citing Stanislaw Pomorski, Conspiracy and Criminal Organizations, in The Nuremberg Trial and International Law 213, 216 (George Ginsburgs & V.N. Kudriavtsev eds., 1990)).

[27] See Minear, supra note 22, at 37 (One chief British representative at the London Conference stated, “What is in my mind is getting a man like Ribbentrop or Ley.  It would be a great pity if we failed to get Ribbentrop or Ley or Streicher.  Now I want words that will leave no doubt that men who have originated the plan or taken part in the early stages of the plan are going to be within the jurisdiction of the Tribunal.” (quoting from London Conference, p.301; London Conference is: Text of the Nuremberg Charter in “International Conference on Military Trials,” Department of State Publication No. 3080 (Washington: US Government Printing Office, 1949)).

[28] Danner & Martinez, supra note 12, at 115 (citing Pomorski, supra note 26, at 216-17 (citation omitted)).

[29] Article 6(a) of the Charter provides: “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”  Professor Cherif Bassiouni notes that “[o]n its face, such a formulation derives from the common law and does not have much in common with the Romanist-Civilist-Germanic systems.”  Cherif Bassiouni, Crimes Against Humanity in Int’l Criminal Law 382 (1999).

[30] Danner & Martinez, supra note 12, at 116.

[31] Counts 2, 3, and 4 were, respectively, “Crimes Against Peace,” “War Crimes,” and “Crimes Against Humanity.”

[32] International Military Tribunal, Indictment, Oct. 6, 1945, reprinted in The Nuremberg War Crimes Trial: 1945-46: A Documentary History 64 (Michael R. Marrus ed., 1997).

[33] Marrus, supra note 32, at 58.

[34] Marrus, supra note 32, at 231.

[35] Marrus, supra note 32, at 231.

[36] Marrus, supra note 32, at.231.

[37] Marrus, supra note 32, at 231-32.

[38] Marrus, supra note 32, at 232.

[39] Marrus, supra note 32, at 232.

[40] Marrus notes that the charge of “crimes against peace” was the central concept, because it was the conspiracy to commit crimes against peace that can be said is what would ultimately led to the other crimes of crimes against humanity and war crimes.  So, the crimes against peace charge is central to understanding the framework of the indictment.  That is, aggression of the conspiracy, of the Nazis, was the central concept, which further spawned subsequent evil.  Because of this, the prosecution had a hard time separating the first two counts.  Marrus, supra note 32, at 122.

[41] Danner & Martinez, supra note 12, at 115, (citing Edward M. Wise, RICO and Its Analogues: Some Comparative Considerations, 27 Syracuse J. Int’l L. & Com. 303, 312 (2000)).

[42] Danner & Martinez, supra note 12, at 116.

[43] Danner & Martinez, supra note 12, at 116-17.

[44] Article 9 of the Charter provided: “the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.”

Article 10 of the Charter provided: “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts.  In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.”  The individual must have joined voluntarily, must have joined intentionally, and must have known that the organization was criminal.

[45] Bassiouni, supra note 29, at 385.

[46] Danner & Martinez, supra note 12, at 114 (citations omitted).

[47] Danner & Martinez, supra note 12, at 114 (citations omitted).

[48] Robert H. Jackson, The Law Under Which Nazi Organizations are Accused of Being Criminal, Argument by Robert H. Jackson, February 28, 1946, reprinted in, The Nurnberg Case: As Presented by Robert H. Jackson, at 104 (1971).  But see Bassiouni, supra note 29, at 382-83 (Bassiouni argues that Jackson fell victim to the confusion between conspiracy and membership in criminal organization liability, in that Article 6(a) of the Charter linked conspiracy to “crimes against peace,” and that the Nuremberg Tribunal did not rely on Article 6(a) for “crimes against humanity.”).

[49] Jackson, supra note 48, at 106-07.  Jackson stated: “The German courts in dealing with criminal organizations proceeded on the theory that all members were held together by a common plan in which each one participated even though at various levels.  Moreover, the fundamental principles of responsibility of members, as stated by the German Supreme Court, are strikingly like the principles that govern the Anglo-American law of conspiracy.”

[50] Jackson, supra note 48, at 107.

[51] Jackson urged the court that: “The Charter did not define responsibility for the acts of others in terms of ‘conspiracy’ alone.  The crimes were defined in nontechnical but inclusive terms, and embraced formulating and executing a ‘common plan’ as well as participating in a ‘conspiracy.’  It was feared that to do otherwise might import into the proceedings technical requirements and limitations which have grown up around the term ‘conspiracy.’  There are some divergences between the Anglo-American concept of conspiracy and that of either Soviet, French, or German jurisprudence.  It was desired that concrete cases be guided by the broader considerations inherent in the nature of the social problem, rather than controlled by refinements of any local law.”  Jackson, supra note 48, at 108.

[52] Bassiouni, supra note 29, at 390 (quoting I Trial of the Major War Criminals Before the International Military Tribunal, at 256 (1947)).

[53] Bassiouni, supra note 29, at 384.

[54] See generally, Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (1987).  The Judgment at Nuremberg was 270 pages.

[55] Brackman, supra note 54, at 83.

[56] Brackman, supra note 54, at 84.

[57] Minear, supra note 22, at 40.  The prosecution team was made up of eleven Allied nations, each nation contributing an assistant (not including the United States) to the team under the direction of Chief Prosecutor Joseph B. Keenan, an American.

[58] Minear, supra note 22, at 41 (quoting from “Trial of Japanese War Criminals,” pp.8-9, United States Department of State Publication 2613 (Washington: Government Printing Office, 1946)—the case Keenan is referring to is Marino v. United States, 91 Fed. 2nd 691; 113 ALR 975).

[59] Brackman, supra note 54, at 85.

[60] Brackman, supra note 54, at 85.  (Brackman wrote that, in relation to Brown’s proposal, “Under this more flexible interpretation of conspiracy, any Japanese leader who entered into an agreement, combination, or association with anyone else to wage war was guilty of criminal conspiracy ‘even though he did not authorize or actually participate in the preparation of the ultimate unlawful act or acts or in the preceding illegal means, as long as he failed expressly to withdraw from the evil combination.’  This interpretation of the conspiracy or common-plan charge was to generate unremitting controversy among international lawyers and was to play a role in the judgment ultimately handed down by the tribunal.” (85))

[61] Brackman, supra note 54, at 284 (quoting the defense’s opening statement).

[62] Minear, supra note 22, at 41 (citation omitted).

[63] Minear, supra note 22, at 41 (citation omitted).

[64] Judge Pal of India dissented, and stated that “’After giving my anxious thought to the question I have come to the conclusion that ‘conspiracy’ by itself is not yet a crime in international law.’”  President Webb of Australia agreed, who said that international law “’does not expressly include a crime of naked conspiracy,’” and that the Tokyo Tribunal “’has no authority to create a crime of naked conspiracy based on the Anglo-American concept.’”  Minear, supra note 22, at 42.

[65] Brackman, supra note 54, at 378.  Count 1 of the indictment: “All the accused together with other persons, between the 1st January, 1928, and the 2nd September, 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy, and are responsible for all acts performed by any person in execution of such plan.”  The alleged object of this conspiracy was the domination of East Asia, the Pacific and Indian Oceans, and all bordering countries.

[66] Brackman, supra note 54, at 374.  The judgment further read:  “These far-reaching plans for waging wars of aggression, and the prolonged and intricate preparation for and waging of these wars of aggression were not the work of one man.  They were the work of many leaders acting in pursuance of a common plan for the achievement of a common object.  That common object, that they should secure Japan’s domination by preparing and waging wars of aggression, was a criminal object.  Indeed, no more grave crime can be conceived of than a conspiracy to wage a war of aggression or the waging of a war of aggression, for the conspiracy threatens the security of the peoples of the world, and the waging disrupts it.  The probable result of such a conspiracy, and the inevitable result of its execution, is that death and suffering will be inflicted on countless human beings.  The Tribunal does not find it necessary to consider whether there was a conspiracy to wage wars in violation of the treaties, agreements and assurances specified in the particulars annexed to Count 1.  The conspiracy to wage wars of aggression was already criminal in the highest degree.  The tribunal finds that the existence of the criminal conspiracy to wag wars of aggression … has been proved.”  IMTFE’s Findings on the Indictment, reprinted in Appendix B, Brackman, supra note 54, at 414, 417.

[67] Minear, supra note 22, at 42.

[68] Brackman, supra note 54, at 379.  The reasons for throwing out 45 charges were lack of jurisdiction, redundancy, because a count merged with another, or because a charge was obscurely stated.  Brackman, supra note 54, at 373.

[69] See Brackman, supra note 54, at 380.  Those two counts were 54 and 55.  Under Count 54, the court found five defendants guilty of having “ordered, authorized, and permitted” inhumane treatment of POWs and others.  Under Count 55, the court found seven defendants guilty of having “deliberately and recklessly disregarded their duty” to take appropriate and adequate steps to prevent atrocities from occurring.

[70] Brackman, supra note 54, at 226.

[71] Minear, supra note 22, at 127-134.

[72] Prosecutor v. Delalic and Delic, Judgment, ICTY Trial Chamber, at ¶ 328, Case No. IT-96-21-T (Nov. 16, 1998) (holding that where there is a pre-existing plan to commit crimes “or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and directly and substantially contribute to, the realisation of this purpose may be held criminal responsible under Article 7(1) for the resulting criminal conduct.”).  See also Prosecutor v. Furundzija, Judgment, ICTY Trial Chamber, at ¶ 211-13, Case No. IT-95-17/1-T (Dec. 10, 1998); and Schabas, supra note 15, at 1031 (observing that the doctrine of joint criminal enterprise stems from the Delalic court’s discussion of complicity).

[73] Prosecutor v. Tadic, Judgment, ICTY Appeals Chamber, Case No. IT-94-1-A (July 15, 1999) [hereinafter, Tadic, Appeals Judgment].

[74] Prosecutor v. Tadic, Judgment, ICTY Trial Chamber, at ¶ 373, Case No. IT-95-1-A (May 7, 1997) [hereinafter Tadic, Trial Judgment].

[75] Tadic, Trial Judgment, at ¶ 373.

[76] Tadic, Trial Judgment, at ¶ 373.

[77] Prosecutor v. Tadic, Judgment, ICTY Appeals Chamber, at ¶ 183, Case No. IT-95-1-A (July 15, 1999) [hereinafter Tadic, Appeals Judgment].

[78] Tadic, Appeals Judgment, at ¶ 178.

[79] Tadic, Appeals Judgment, at ¶ 232.  Specifically, the tribunal stated, Tadic “had the intention to further the criminal purpose to rid the Prijedor region of the non-Serb population, by committing inhumane acts against them.  That non-Serbs might be killed in the effecting of this common aim was, in the circumstances of the present case, foreseeable.  The Appellant was aware that the actions of the group of which he was a member were likely to lead to such killings, but he nevertheless willingly took that risk.”

[80] Tadic, Appeals Judgment, at ¶ 188.

[81] See, e.g., Ojdanic, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, ICTY Appeals Chamber, at ¶ 20 (May 21, 2003); Prosecutor v. Krnojelac, Judgment, ICTY Appeals Chamber, at ¶ 73, Case No. IT-97-25-A (Sept. 17, 2003).  But see Steven Powles, Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 J. Int’l Crim. Just. 606, 611 (2004) (noting that it is difficult to understand how “committing” can include third category JCE; he has no problem with first category JCE and the “committing” language, because the individual intends the act, but he has a problem with third category JCE falling within the ambit of the language of “committing”).

[82] Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (Feb. 22, 1993), UN Doc. S/25704, at ¶ 56.

[83] Tadic, Appeal Judgment, at ¶ 186.

[84] Prosecutor v. Blagojevic & Jokic, Judgment, ICTY Trial Chamber, at ¶ 698, Case No. IT-02-60-T (Jan. 17, 2005) (citing Tadic, Appeals Judgment, at ¶ 227).

[85] Tadic, Appeals Judgment, at ¶ 228.

[86] Tadic, Appeals Judgment, at ¶ 196 (The Appeals Chamber stated: “for imputing criminal responsibility to a participant who did not, or cannot be proven to have, effected the killing are as follows: (i) the accused must voluntarily participate in one aspect of the common design (for instance, by inflicting non-fatal violence upon the victim, or by providing material assistance to or facilitating the activities of his co-perpetrators); and (ii) the accused, even if not personally effecting the killing, must nevertheless intend this result.”).

[87] But see Powles, supra note 83, at 609-610 (arguing that the concentration camp cases are more akin to third category JCE rather than first category JCE because if, for example, the guard participated in the oversight but did not know of particular acts but those acts were foreseeable, then the guard would still be liable, and this sounds like third category JCE, not the first category JCE where the guard would have intended the illegal acts).

[88] Tadic, Appeals Judgment, at ¶ 203.

[89] Tadic, Appeals Judgment, at ¶ 204.

[90] Tadic, Appeals Judgment, at ¶ 204.

[91] Tadic, Appeals Judgment, at ¶ 204.

[92] Tadic, Appeals Judgment, at ¶ 204.

[93] See, e.g., Danner & Martinez, supra note 12, at 110 (noting that the two types of cases cited are those involving unlawful killings of Allied POWs by German soldiers and by German townspeople, and those involving concentration camps).

[94] Powles, supra note 83, at 615-16.  For a commentator supporting the Tadic Appeals decision with respect to third category JCE, see Antonio Cassese, International Criminal Law 187 (2003) (stating that the court had demonstrated that third category JCE “was based on case law, had a solid underpinning in many national legal systems, and in addition was consonant with the general principles on criminal responsibility laid down both in the ICTY Statute and in customary international law” (citing Tadic, Appeals Judgment, at ¶¶ 224-9)).

[95] I United Nations War Crimes Commission, Trial of Erich Heyer and Six Others (the “Essen Lynching” case), British Military Court for the Trial of War Criminals, in Law Reports of Trials of War Criminals 88, 88 (1947).

[96] Tadic, Appeals Judgment, at ¶ 210-213.

[97] See Tadic, Appeals Judgment, at ¶ 208.

[98] Powles, supra note 83, at 616.

[99] Powles, supra note 83, at 616.

[100] Tadic, Appeals Judgment, at ¶ 210.

[101] Tadic, Appeals Judgment, at ¶¶ 210-11.

[102] Tadic, Appeals Judgment, at ¶ 213.

[103] Tadic, Appeals Judgment, at ¶ 215 (D’Ottavio et al., Court of Cassation, March 12, 1947 (appeal from the Assize Court of Teramo) (unpublished opinion, on file at the ICTY’s Library)).

[104] Powles, supra note 83, at ¶¶ 616-17.

[105] Tadic, Appeals Judgment, at ¶ 215.

[106] Tadic, Appeals Judgment, at ¶¶ 216-219.

[107] Danner & Martinez, supra note 12, at 112.

[108] Cassese, supra note 96, at 181-87.

[109] Tadic, Appeals Judgment, at ¶ 228.

[110] Tadic, Appeals Judgment, at ¶ 228.

[111] Prosecutor v. Krstic, Judgment, ICTY Trial Chamber, at ¶ 613, Case No. IT-98-33-T (Aug. 2, 2001) (The Trial Chamber dichotomized the doctrine, into those cases where the crime was within the purpose of the enterprise and those cases where the crime was outside the purpose but was nevertheless a foreseeable consequence of the enterprise.  The Trial Chamber stated, “if the crime charged fell within the object of the joint criminal enterprise, the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime.  If the crime charged went beyond the object of the joint criminal enterprise, the prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of that enterprise and that, with that awareness, he participated in the enterprise.”).

[112] Prosecutor v. Brdjanin and Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ICTY Trial Chamber, at ¶ 31 (June 26, 2001).

[113] See E. Katselli, The Notion of Individual Criminal Responsibility for Participation in a Joint Criminal Enterprise in the New International Criminal Law with Respect to the Crime of Genocide and in View of the New Charges for Bosnia Against Slobodan Milosevic, in The New International Criminal Law 1028 (Kalliopi Koufa ed., 2003) (noting that the stricter requirement of proof in the first category of cases is not present in the latter category of foreseeable crimes).

[114] See Schabas, supra note 15, at 1033 (referring to such serious-crimes convictions based on “negligence-like standard of guilt”).

[115] Schabas, supra note 15, at 1033.  Schabas further writes: “[t]he use of objective criteria to measure knowledge and intent is well-accepted in criminal justice systems in the case of negligence based-offences …[but that] negligence-type offences are not treated as the most serious crimes, and they do not attract the most serious penalties.”

[116] Schabas, supra note 15, at 1033.

[117] See Prosecutor v. Babic, Sentencing Judgment, ICTY Appeals Chamber, at ¶ 27, Case No. IT-03-72-A (July 18, 2005) (accused is liable under third-category JCE if “so long as the secondary crimes were foreseeable and the Appellant willingly undertook the risk that they would be committed, he had the legally required ‘intent’ with respect to those crimes”) (emphasis added); Prosecutor v. Kvocka, Judgment, ICTY Appeals Chamber, at ¶ 83, Case No. 98-30/1-A (Feb. 28, 2005) [hereinafter, Kvocka, Appeals Judgment] (“the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise”).

[118] Darcy, supra note 16, at 155.

[119] Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925).

[120] Krulewitch v. United States, 336 U.S. 440, 446 (1949) (Jackson, J., concurring).

[121] Dennis v. United States, 341 U.S. 561, 572 (1951).  Jackson also referred to it as “awkward and inept.”

[122] Dennis v. United States, 341 U.S. 561, 577 (1951).

[123] Joshua Dressler, Understanding Criminal Law 423 (3rd ed. 2001).  For a brief overview of conspiracy law, see Kathy Diener and Teisha C. Johnson, Federal Criminal Conspiracy, 42 Am. Crim. L. Rev. 463 (2005).

[124] Dressler, supra note 125, at 423.  Section 5.03(1) of the Model Penal Code defines “conspiracy” as:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or

(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

[125] Justice Jackson stated that conspiracy “is always ‘predominantly mental in composition’ because it consists primarily of a meeting of minds and an intent.”  Krulewitch v. United States, 336 U.S. 440, 447-48 (1949) (Jackson, J., concurring) (footnote omitted).

[126] Phillip E. Johnson, The Unnecessary Crime of Conspiracy, 61 Cal. L. Rev. 1137, 1139 (1973).

[127] Prosecutor v. Milutinovic et al., Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, ICTY Appeals Chamber, at ¶ 23, Case No. IT-99-37-AR72 (May 21, 2003).

[128] Prosecutor v. Milutinovic et al., Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, ICTY Appeals Chamber, fn 65 (May 21, 2003) (citing XV Law Reports of Trials of Major War Criminals, pp. 97-98).

[129] Prosecutor v. Milutinovic et al., Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, Appeals Chamber, at ¶ 25 (May 21, 2003).

[130] Prosecutor v. Milutinovic et al., Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, Appeals Chamber, at ¶ 25 (May 21, 2003).

[131] Dressler, supra note 125, at 427.

[132] Dressler, supra note 125, at 433.

[133] Before continuing, a brief review of what is meant by “intent” would be helpful.  In United States common law, the term “intent” encompasses two distinct mental states: “purpose” and “knowledge.”  That is, an individual “intends” to commit an act if: “(1) it is his desire (i.e., his conscious object) to cause the harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.”  Dressler, supra note 125, at 119.

[134] Dressler, supra note 125, at 434 (quoting State v. Beccia, 505 A.2d 683, 684 (Conn. 1986)).

[135] Dressler, supra note 125, at 437.

[136] See Dressler, supra note 125, at 438 (citing Model Penal Code § 210.2(1)(b)).

[137] Dressler, supra note 125, at 487.

[138] Dressler, supra note 125, at 487.

[139] See, e.g., Pinkerton v. United States, 328 U.S. 640, 646-47 (1946).

[140] Tadic, Appeals Judgment, at ¶ 220 (emphasis added) (the Appeals Chamber stated that “the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit impliedly, in the Statute of the International Tribunal.”).

[141] Pinkerton v. United States, 328 U.S. 640, 646-47 (1946) (established the rule of vicarious liability in conspiracy cases); see also United States v. Newsome, 322 F.3d 328, 338 (4th Cir. 2003) (holding that a conspirator is liable for all the reasonably foreseeable acts of a co-conspirator committed in furtherance of the conspiracy).

[142] Danner & Martinez, supra note 12, at 115-16 (citing Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and Its Processes: Cases and Materials 693 (7th ed. 2001)).

[143] Bassiouni, supra note 29, at 42.

[144] 1907 Hague Convention, Preamble.  The Preamble states: “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and 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 the public conscience.”  (emphasis added).  This has generally been referred to as the Marten’s Clause, named after Russian diplomat Fyodor Martens who drafted it.  Later in the century, similar language was used in Additional Protocol I (in Articles 1 and 2), and Additional Protocol II (in the Preamble). 

[145] Bassiouni, supra note 29, at 42.

[146] Bassiouni, supra note 29, at 62.  Nothing amounted to this declaration, but nevertheless, the rhetoric of crimes against humanity was being formulated.

[147] Bassiouni, supra note 29, at 63.

[148] Bassiouni, supra note 29, at 1.  The Article 6(c) passage comes from: Annex to the Agreement for the Prosecution and Punishment of Major War Criminals, London, 8 August 1945, 82 U.N.T.S. 280, at ¶ 6(c)).

[149] Bassiouni, supra note 29, at 8.

[150] Olivia Swaak-Goldman, Persecution, in Substantive and Procedural Aspects of Int’l Criminal Law at 249, Vol. I (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000).

[151] Article 6(c) served as the model for Article II(c) of the Allied Control Council Law No. 10 (1945) and Article 5(c) of the Tokyo Charter (1946).  Allied Control Council Law No. 10 came about from the Allied administration of post-war Germany, by the four major Allies, each in their respective zones—the administration was the Control Council and it subsequently passed Council Law No. 10.  The purpose was to try war criminals—i.e., those not major enough to go before the Nuremberg Tribunal—in their respective zones, and the law was a sort of hybrid national/international applied to Germany.  See Bassiouni, supra note 29, at 1-3.

[152] United Nations War Crimes Commission, History of the United Nations War Crimes Commission (1948), pp. 192-194.

[153] Bassiouni, supra note 29, at 9.

[154] Bassiouni, supra note 29, at 9, and generally Ch. 4.  Bassiouni asserts that although there is little record of discussions involving the principle of legality, this is probably because the drafters did not want to give evidence to the defense and opponents of the Tribunal as to the dubious nature of the new crime of “crimes against humanity” and that this new crime violated the principles of legality, see page 31.

[155] Bassiouni, supra note 29, at 10.

[156] Bassiouni, supra note 29, at 17.

[157] Bassiouni, supra note 29, at 42.

[158] Article 5 of the ICTY Statute provides: “The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population.”

[159] Prosecutor v. Kordic and Cerkez, Judgment, ICTY Appeals Chamber, at ¶ 93, Case No. IT-95-14/2-A (Dec. 17, 2004) (underline original) (citing Prosecutor v. Blaskic, Judgment, ICTY Appeals Chamber, at ¶ 98, Case No. IT-95-14-A (July 29, 2004)).

[160] Kordic and Cerkez, Appeals Chamber, at ¶ 94 (citing Blaskic, Appeals Chamber, at ¶ 101, referring to Prosecutor v. Kunarac, Kovac, & Vukovic, Judgment, ICTY Appeals Chamber, at ¶ 96, Case No. IT-96-23 & IT-96-23/1-A (June 12, 2002)).

[161] Kordic and Cerkez, Appeals Chamber, at ¶ 94 (citing Blaskic, Appeals Chamber, at ¶ 101, referring to Kunarac Appeals Chamber, at ¶ 96).

[162] Kordic and Cerkez, Appeals Chamber, at ¶ 94 (citing Blaskic, Appeals Chamber, at ¶ 101, referring to Kunarac, Appeals Chamber, at ¶ 96); Prosecutor v. Brdjanin, Judgment, ICTY Trial Chamber, at ¶ 135, Case No. IT-99-36-T (Sept. 1, 2004).

[163] Kordic and Cerkez, Appeals Judgment, at ¶ 666 (citing Kunarac, Appeals Chamber, at ¶ 94; Blaskic, Appeals Chamber, at ¶ 101).

[164] Kordic and Cerkez, Appeals Judgment, at ¶ 666 (citing Kunarac, Appeals Chamber, at ¶ 86); Brdjanin, Trial Chamber, at ¶ 131.

[165] Brdjanin, Trial Judgment, at ¶ 131 (citing Tadic, Appeals Judgment, at ¶ 251; Kunarac, Appeals Judgment, at ¶ 86; Krnojelac, Trial Judgment, at ¶ 54).

[166] Brdjanin, Trial Judgment, at ¶ 131 (Kunarac, Trial Judgment, at ¶ 580; Kunarac, Appeals Judgment, at ¶ 87).

[167] Brdjanin, Trial Judgment, at ¶ 131 (citing Kunarac, Appeals Judgment, at ¶ 87).

[168] Brdjanin, Trial Judgment, at ¶ 132 (citing Tadic, Appeals Judgment, at ¶ 248; Kunarac, Appeals Judgment, at ¶¶ 85, 99-101).

[169] Brdjanin, Trial Judgment, at ¶ 132 (citing Kunarac, Trial Judgment, at ¶ 417 et seq.).

[170] Brdjanin, Trial Judgment, at ¶ 132 (citing Kunarac, Trial Judgment, at ¶ 417 et seq.).

[171] Brdjanin Trial Judgment, at ¶ 133 (citing Kunarac, Appeals Judgment, at ¶¶ 57-60, 83).

[172] Brdjanin Trial Judgment, at ¶ 133 (quoting Kunarac Appeals Judgment, at ¶ 83).

[173] Kunarac, Appeals Judgment, at ¶ 98.

[174] Blaskic, Appeals Judgment, at ¶ 120; Kunarac, Appeals Judgment, at ¶ 98.

[175] Blaskic, Appeals Judgment, at ¶ 120 (quoting Kunarac, Appeals Judgment, at ¶ 98 (footnote omitted)).

[176] Brdjanin, Trial Judgment, at ¶ 136 (citing Kunarac, Appeals Judgment, at ¶ 95).

[177] Kordic and Cerkez, Appeals Judgment, at ¶ 93 (citing Blaskic, Appeals Judgment, at ¶ 98).

[178] Kordic and Cerkez, Appeals Judgment, at ¶ 97 (citing Blaskic, Appeals Judgment, at ¶ 110).

[179] Kordic and Cerkez, Appeals Judgment, at ¶ 97 (citing Blaskic, Appeals Judgment, at ¶ 110).

[180] Blaskic, Appeals Judgment, at ¶ 105 (quoting Kunarac, Appeals Judgment, at ¶ 90 (footnote omitted)).

[181] Blaskic, Appeals Judgment, at ¶ 106 (quoting Kunarac Appeals Judgment, at ¶ 91 (footnote omitted)).

[182] Blaskic, Appeals Judgment, at ¶ 111.

[183] Blaskic, Appeals Judgment, at ¶ 113 (citing Common Article 3 and stating that it reflects customary international law).

[184] Brdjanin, Trial Judgment, at ¶ 134 (citing Kunarac, Appeals Judgment, at ¶ 90) (“[i]t is also not necessary that the entire civilian population of the geographical entity in which the attack is taking place be targeted by the attack.  It must, however, be shown that the attack was not directed against a limited and randomly selected number of individuals.”).

[185] See also Prosecutor v. Limaj et al., at ¶¶ 191-228.   The Trial Chamber held that the targeting of suspected collaborators with Serbian authorities did not constitute an attack on the civilian population.

[186] Kordic and Cerkez, Appeals Judgment, at ¶ 99 (citing Blaskic, Appeals Judgment, at ¶ 124, referring to Tadic, Appeals Judgment, at ¶ 248; Kunarac, Appeals Judgment, at ¶ 99, 102) (stating that the mens rea for crimes against humanity is “satisfied when the accused has the requisite intent to commit the underlying offence(s) with which he is charged, and when he knows that there is an attack on the civilian population and also knows that his acts comprise part of that attack.”).

[187] Blaskic, Appeals Judgment, at ¶ 126.

[188] Blaskic, Appeals Judgment, at ¶ 124 (quoting Kunarac, Appeals Judgment, at ¶ 103 (footnotes omitted)).

[189] Kunarac, Trial Chamber.

[190] Tadic, Appeals Judgment, at ¶ 305.  Other international instruments support the proposition that crimes against humanity in general, excluding persecution, do not require a discriminatory intent.  Those instruments include the Tokyo Charter, Control Council No. 10 and its jurisprudence, and the Rome Statute.  Notably, the ICTR Statute differs, in that discriminatory intent is explicitly required for all crimes against humanity.  See Swaak-Goldman, supra note 150, at 256-257.

[191] See generally Swaak-Goldman, supra note 150, at 247-261.

[192] Bassiouni, supra note 29, at 328 (Universal Declaration; ICCPR; ICSEC; Int’l Convention on the Elimination of Racial Discrimination (GA Res 2106A(XX) of Dec. 21, 1965); Declaration on the Elimination of All Forms of Racial Discrimination (UN GA Res. 1904(XVIII) Nov. 20, 1963); International Convention on the Suppression and Punishment of the Crime of Apartheid (GA REs 3068 (XXVIII) Nov. 30, 1973); Declaration on the Elimination of Discrimination Against Women; Convention on the Elimination of All Forms of Discrimination Against Women; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN GA Res. 36/55, Nov. 25, 1981).

[193] Bassiouni, supra note 29, at 327 (Bassiouni also noted that there is no international instrument, minus the Apartheid and Genocide Conventions).

[194] Bassiouni, supra note 29, at 327.

[195] Tadic, Trial Judgment, at ¶ 695.

[196] Article 6 of the Statute of the ICTR mirrors the language of Article 7 of the Statute of the ICTY, and thus, provides for the same crimes enumerated as crimes against humanity.

[197] For an examination of early jurisprudence on persecution at the ICTY, see generally, Ken Roberts, The Law of Persecution Before the International Criminal Tribunal for the Former Yugoslavia, in 15 Leiden J. Int’l L. 623-639 (2002); William J. Fenrick, The Crime Against Humanity of Persecution in the Jurisprudence of the ICTY, in Netherlands Yearbook of Int’l Law 81-96 (2001).

[198] Kordic and Cerkez, Appeals Judgment, at ¶ 101 (quoting Blaskic, Appeals Judgment, at ¶ 131, referring to Tadic, Appeal at 248; Kunarac, Appeals Judgment, at ¶¶ 99, 103); see also Krnojelac, Trial Judgment, at ¶ 431; Prosecutor v. Vasiljevic, Judgment, ICTY Trial Chamber, at ¶ 244, Case No. IT-98-32-T (Nov. 29, 2002) [hereinafter Vasiljevic, Trial Judgment]; Prosecutor v. Stakic, Judgment, ICTY Trial Chamber, at ¶ 732, Case No. IT-97-24-T (July 31, 2003); Prosecutor v. Simic, Tadic, & Zaric, Judgment, ICTY Trial Chamber, at ¶ 47, Case No. IT-95-9-T (Oct. 17, 2003); Kupreskic, Trial Judgment, at ¶ 621; Naletilic, Trial Judgment, at ¶ 634.

[199] Kupreskic, Trial Judgment, at ¶ ?

[200] See, e.g., Kvocka, Appeals Judgment, at ¶ 320; Krnojelac, Appeals Judgment, at ¶ 185; Vasiljevic, Appeals Judgment, at ¶ 113; Blaskic, Appeals Judgment, at ¶ 131; Kordic and Cerkez, Appeals Judgment, at ¶ 101.

[201] Krnojelac, Trial Judgment, at ¶ 432.

[202] Kvocka, Trial Judgment, at ¶ 195.

[203] Krnojelac, Trial Judgment, fn 1292.

[204] Krnojelac, Trial Judgment, at ¶ 432.

[205] Krnojelac, Trial Judgment, at ¶ 435.

[206] Brdjanin, Trial Judgment, at ¶ 993 (The Trial Chamber stated: “it is not necessary that the victim of the crime of persecutions be a member of the group against whom the perpetrator of the crime intended to discriminate.  In the event that the victim does not belong to the targeted ethnic group, ‘the act committed against him institutes discrimination in fact, vis-à-vis other [members of that different group] who were not subject to such acts, effected with the will to discriminate against a group on grounds of ethnicity.’” (quoting Krnojelac Appeal Judgment, at ¶ 185)).

[207] Kordic and Cerkez, Appeals Judgment, at ¶ 102 (citing Blaskic Appeal, at ¶ 135, referring to Krnojelac, Appeals Judgment, at ¶ 199,221).

[208] Kordic and Cerkez, Appeals Judgment, at ¶ 103 (citing Blaskic, Appeals Judgment, at ¶ 139).

[209] Kordic and Cerkez, Appeals Judgment, at ¶ 103 (citing Blaskic, Appeals Judgment, at ¶ 139).

[210] Simic, Trial Judgment, at ¶ 48 (citing Kordic and Cerkez, Trial Judgment, at ¶ 196; Kvocka, Trial Judgment, at ¶ 185; Krnojelac, Trial Judgment, at ¶ 434).

[211] See, e.g., Tadic, Trial Judgment, at ¶ 703; Simic, Trial Judgment, at ¶ 48.

[212] Simic, Trial Judgment, at ¶ 48 (quoting Krnojelac, Trial Judgment, at ¶ 434; Kupreskic, Trial Judgment, at ¶ 621; Naletilic, Trial Judgment, at ¶ 635).

[213] For example, Article 2(a): willful killing; Article 2(b): torture or inhuman treatment; Article 2(g): unlawful deportation or transfer or unlawful confinement of a civilian.

[214] See Blaskic, Appeals Judgment, at ¶ 155; Kordic and Cerkez, Appeals Judgment, at ¶ 107; Kordic and Cerkez, Trial Judgment, at ¶ 204, footnote 360.

[215] See Kvocka, Appeals Chamber, at ¶ 324.

[216] Simic, Trial Judgment, at ¶ 69.

[217] Simic, Trial Judgment, at ¶ 69.

[218] Blaskic, Appeals Judgment, at ¶ 136 (quotations omitted).

[219] Blaskic, Appeals Judgment, at ¶ 144.

[220] See Blaskic, Appeals Judgment, at ¶ 149, Kupreskic, Trial Judgment, at ¶ 631.

[221] See Kordic, Trial Judgment, at ¶ 206.

[222] Blaskic, Appeal Judgment, at ¶ 160.

[223] Blaskic, Appeals Judgment, at ¶ 138.

[224] Kordic and Cerkez, Appeals Judgment, at ¶ 103 (citing Blaskic, Appeals Judgment, at ¶ 139).

[225] Blaskic, Appeals Judgment, at ¶ 137 (quoting Blaskic, Trial Judgment, at ¶ 233) (emphasis added).

[226] Blaskic, Appeals Judgment, at ¶ 137 (quoting Blaskic, Trial Judgment, at ¶ 235).

[227] Kvocka, Trial Judgment, at ¶ 186.

[228] Blaskic, Appeals Judgment, at ¶ 139.

[229] Blaskic, Appeals Judgment, at ¶ 139.

[230] Blaskic, Appeals Judgment, at ¶ 140.

[231] Blaskic, Appeals Judgment, at ¶ 141.

[232] Kordic and Cerkez, Appeals Judgment, at ¶ 110 (quoting Blaskic, Appeals Judgment, at ¶ 164, referring to Krnojelac, Appeals Judgment, at ¶ 184; Vasiljevic, Appeals Judgment, at ¶ 113).

[233] Article 5(h) of the ICTY Statute (emphasis added).

[234] Tadic, Trial Judgment, at ¶ 713.

[235] Interestingly, in Kvocka one defendant argued that the discrimination was based on the issue of secession rather than race or religion, but unsurprisingly, the Appeals Chamber used his own words against him by noting that political grounds are also a basis for persecution.  Thus, the issue of secession constitutes a political ground that can form the basis for persecution.  See Kvocka, Appeals Judgment, at ¶ 456.

[236] Krnojelac, Trial Judgment, at ¶ 435.

[237] Krnojelac, Trial Judgment, at ¶ 435.

[238] See, e.g., Kordic and Cerkez, Appeals Judgment, at ¶ 715.

[239] See Tadic, Trial Judgment, at ¶ 652.

[240] Kvocka, Appeals Judgment, at ¶ 460 (citing Krnojelac, Appeals Judgment, at ¶ 184; Blaskic, Appeals Judgment, at ¶ 164); see also Kordic & Cerkez, Appeals Judgment, at ¶ 110, 715.

[241] Kvocka, Appeals Judgment, at ¶ 460 (citing Krnojelac Appeal, at ¶ 184; Blaskic, Appeals Judgment, at ¶ 164); see also Kordic & Cerkez, Appeals Judgment, at ¶ 110, 715.

[242] Vasiljevic, Trial Chamber, at ¶ 249; see also Krnojelac, Trial Judgment, at ¶ 436.

[243] See, e.g., Krnojelac, Trial Judgment, at ¶ 436; see also Simic, Trial Judgment, at ¶ 51 (“[t]he discriminatory intent must relate to the specific act or omission underlying the charge of persecution as opposed to the attack in general, notwithstanding the fact that the attack may also in practice have a discriminatory intent”).

[244] See, e.g., Kvocka, Trial Judgment, at ¶ 195 (The Trial Chamber first established that the general attack was discriminatory, and therefore concluded that the individual acts comprising the act were discriminatory as well).

[245] Kvocka, Appeals Judgment, at ¶ 366 (citing Krnojelac, Appeals Judgment, at ¶ 186; Kordic and Cerkez, Appeals Judgment, 950).

[246] Kvocka, Appeals Judgment, at ¶ 367; see also Simic, Trial Judgment, at ¶ 51.

[247] Krstic, Trial Judgment, at ¶ 536.

[248] Krstic, Trial Judgment, at ¶ 538.

[249] Kordic and Cerkez, Appeals Judgment, at ¶ 722.

[250] Blaskic, Appeals Judgment, at ¶ 165.

[251] Blaskic, Appeals Judgment, at ¶ 165; see also Kordic and Cerkez, Appeals Judgment, at ¶ 111.

[252] Blaskic, Appeals Judgment, at ¶ 165.

[253] Kvocka, Appeals Judgment, at ¶ 463 (emphasis added).

[254] Kvocka, Appeals Judgment, at ¶ 463 (citing Tadic, Appeals Judgment, at ¶ 269).

[255] Kvocka, Appeals Judgment, at ¶ 463 (citing Tadic, Appeals Judgment, at ¶¶ 269, 272).

[256] Kvocka, Appeals Judgment, at ¶ 463 (citing Kvocka, Trial Judgment, at ¶ 190).

[257] See, e.g., Naletilic, Trial Judgment, at ¶ 636; Blaskic, Trial Judgment, at ¶ 235.

[258] Krnojelac, Trial Judgment, at ¶ 435 (emphasis added).

[259] Frederick M. Lawrence, Punishing Hate: Bias Crimes under American Law 9 (1999) (Lawrence notes, “Hate-based violence is a bias crime only when this hatred is connected with antipathy for a racial or ethnic group or for an individual because of his membership in that group.”  Thus, “the key factor in a bias crime is not the perpetrator’s hatred of the victim per se, but rather his bias or prejudice toward that victim.”).

[260] Lawrence, supra note 262, at 11.

[261] Lawrence, supra note 262, at 11 (“A prejudiced person usually exhibits antipathy toward members of a group based on false stereotypical views of that group.  But in order for this to be the kind of prejudice of which we speak here, the antipathy must exist in a social context, that is, it must be an animus that is shared by others in the culture and that is a recognizable social pathology within the culture.”).

[262] Lawrence , supra note 262, at 11.

[263] Lawrence , supra note 262, at 30.

[264] This model would be more appropriately labeled “class animus” because race is not the only class that the model includes.  The “racial animus” model applies to instances where the perpetrator harbors ill-will towards the victim based on the relevant set of characteristics, e.g., race, ethnicity, religion, political affiliation.  

[265] Legal scholars more widely accept the racial animus model over the discriminatory selection model.  Lawrence, supra note 262, at 4.

[266] Wisconsin v. Mitchell, 508 U.S. 476 (1993).  The statute provided for an enhanced penalty for an offense whenever “[i]ntentionally selects the person against whom the crime …is committed…because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person….”  Wis. Stat. § 939.645(1)(b).

[267] Wisconsin v. Mitchell, 169 Wis.2d 153, 163; 485 N.W.2d 807, 811 (1992).

[268] Lawrence suggests that because the Court did not focus much on the distinction between the racial animus model and the discriminatory selection model, the actual motivation for perpetrating the crime did not appear to play a role in their decision.   Lawrence, supra note 262, at 34.

[269] The jury instructions read:

“Was the victim of the crime of battery intentionally selected because of his race by the defendant or by another person who committed the battery?”  Before you may answer this question “yes,” you must be satisfied beyond a reasonable doubt that Jay Jay Anjewel [victim] was intentionally selected in whole or in part because of his race by the defendant or another person who committed the battery.  If you are satisfied beyond a reasonable doubt that Jay Jay Anjewel was selected in whole or in part because of his race by the defendant …or by another person who committed the battery, you should answer the question “yes” as to that defendant.

According to the court of appeals, this left the jury three choices: first, find the defendant personally selected the victim on the basis of race; second, find that “another person who committed the battery” selected the victim on the basis of race; third, find that no one had intentionally selected the victim on the basis of race.  Under these instructions, the court of appeals concluded that the jury could have imposed the hate crime penalty enhancement liability regardless of the defendant’s awareness of any such discriminatory selection.

[270] James B. Jacobs & Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics 80 (1998).

[271] Jacobs and Potter do not accept this argument.  These authors suggest that the empirical data does not show that bias crimes are more physically violent than regular crimes.  And they also say that the empirical data do not show that victims of bias crimes are subject to more psychological impact than victims of non-bias crimes.  All victims suffer greatly from psychological impact.  Jacobs & Potter, supra note 273, at 82-84.

[272] Jacobs and Potter also do not agree with this argument.  The authors suggest that many crimes have impacts on others; e.g., brutal rape in a park makes others feel threatened and they change their lifestyle, or a string of abductions that make parents feel threatened.  Jacobs & Potter, supra note 273, at 86-88.

[273] Lawrence, supra note 262, at 40.

[274] Jacobs & Potter, supra note 273, at 86 (quoting from Kent Greenawalt, Reflections on Justifications for Defining Crimes by the Category of Victim, Annual Survey of Am. L. 617, 627 (1992/1993)).

[275] State v. Plowman, 838 P.2d 558 (1992).

[276] Allison Marston Danner, Bias Crimes and Crimes Against Humanity: Culpability in Context, 6 Buff. Crim. L. Rev. 389, 405-06 (2002).

[277] Lawrence, supra note 262, at 58.

[278] Lawrence, supra note 262, at 58.

[279] Lawrence, supra note 262, at 58.

[280] Kupreskic, Trial Judgment, at ¶ 636.

[281] Kupreskic, Trial Judgment, at ¶ 636.

[282] In Kupreskic, the Trial Chamber stated that genocide and persecution belong to the same genus.

[283] Article 4, ICTY Statute.

[284] Kvocka, Appeals Chamber, at ¶ 347.

[285] Kvocka, Appeals Chamber, at ¶ 347.

[286] Kvocka, Appeals Chamber, at ¶ 346.

[287] Kvocka, Appeals Judgment, at ¶ 109 (quoting Kvocka, Trial Judgment, at ¶ 288).

[288] Kvocka, Appeals Judgment, at ¶ 110 (citing Krnojelac, Appeals Judgment, at ¶ 111).

[289] Kvocka, Appeals Judgment, at ¶ 110.

[290] E. Katselli, The Notion of Individual Criminal Responsibility for Participation in a Joint Criminal Enterprise in the New International Criminal Law with Respect to the Crime of Genocide and in View of the New Charges for Bosnia Against Slobodan Milosevic, in The New International Criminal Law (Kalliopi Koufa ed., 2003).

[291] E. Katselli, supra note 292.

[292] Krstic, Trial Judgment, at ¶ 613.

[293] The debates in the United States surrounding the events of Rwanda in 1994 and in Sudan in 2004 illustrate that governments are reluctant to use the word “genocide” for fear that they will be legally bound to take action. 

[294] Stakic, Trial Judgment, at ¶ 558 (emphasis added).

[295] Stakic, Trial Judgment, at ¶ 530.

[296] Stakic, Trial Judgment, at ¶ 559 (Stakic was also acquitted of genocide under Article 7(3) liability because the Trial Chamber did not find any of his subordinates had the requisite dolus specialis.)

[297] Prosecutor v. Brdjanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, at ¶ 9, Case No. IT-99-36-A (March 19, 2004).

[298] Brdjanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, at ¶¶ 5-6 (March 19, 2004).

[299] Brdjanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, at ¶ 2 (March 19, 2004).

[300] Brdjanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, at ¶ 2 (March 19, 2004).

[301] Brdjanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, at ¶ 7 (March 19, 2004).

[302] Brdjanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, at ¶ 8 (March 19, 2004) (citing Krnojelac, Appeals Judgment, at ¶ 52).

[303] Krstic, Appeals Judgment, at ¶ 144.

[304] Krstic, Appeals Judgment, at ¶ 134.

[305] Krstic, Appeals Judgment, at ¶ 134.

[306] Krstic, Appeals Judgment, at ¶ 137.  In overruling the theory of JCE liability, the Appeals Chamber explained: “it was reasonable for the Trial Chamber to conclude that, at least from 15 July 1995, Radislav Krstic had knowledge of the genocidal intent of some of the Members of the VRS Main Staff.  Radislav Krstic was ware that the Main Staff had insufficient resources of its own to carry out the executions and that, without the use of Drina Corps resources, the Main Staff would not have been able to implement its genocidal plan.  Krstic knew that by allowing Drina Corps resources to be used he was making a substantial contribution to the execution of the Bosnian Muslim prisoners.  Although the evidence suggests that Radislav Krstic was not a supporter of that plan, as Commander of the Drina Corps he permitted the Main Staff to call upon Drina Corps resources and to employ those resources.  The criminal liability of Krstic is therefore more properly expressed as that of an aider and abettor to genocide, and not as that of a perpetrator.”

[307] Stakic, Trial Judgment, at ¶ 741 (citation omitted).

[308] Stakic, Trial Judgment, at ¶ 742.

[309] See, e.g., Prosecutor v. Milosevic et al., Second Amended Indictment for Kosovo, Case No. IT-99-37-PT (Oct. 16, 2001); Prosecutor v. Milosevic, Second Amended Indictment for Croatia, Case No. IT-02-54-T (July 28, 2004); Prosecutor v. Milosevic, Amended Indictment for Bosnia, Case No. IT-02-54-T (April 21, 2004).

[310] The nature of the acts when liability first attaches may change over time as the individual gets more involved in the enterprise.  That is, if A only knows about a certain operation and only wishes to engage in that operation, A will only be responsible for that operation.  But if A continues to participate in the movement and learns of other operations, A will be responsible for those as well if those are part of the overall enterprise. 

[311] Schabas, supra note 15, at 1034.

[312] Kordic and Cerkez, Trial Judgment, at ¶ 219 (reference omitted).