Do the Nuremberg and Tokyo Trials of Major Axis War Criminals Provide a Customary Legal Basis for Joint Criminal Enterprise Doctrine?
Robert Charles Clarke
affiliation not provided to SSRN
October 1, 2010
This paper considers the vexed question of whether the doctrine of joint criminal enterprise applied by international criminal courts and tribunals is a norm of customary law. For these purposes, it relies chiefly on the trials of major Axis war criminals after World War Two, rather than the trials of minor war criminals relied on in the formative decisions of the ICTY. It is ultimately concluded that this post-World War Two case law does provide a customary legal basis for the core precepts of joint criminal enterprise, notwithstanding that there are material differences between the two sets of jurisprudence. On the other hand, although additional case law is adduced to support the "extended" limb of joint criminal enterprise doctrine, the legal status of this controversial rule remains ambiguous.
Note that the discussion in Chapter V (extended joint criminal enterprise responsibility) has been superseded by an article entitled 'Return to Borkum Island: Extended Joint Criminal Enterprise Responsibility in the Wake of World War Two' (2011) 9 Journal of International Criminal Justice 839
Number of Pages in PDF File: 102
Keywords: joint criminal enterprise, Tadic, ICTY, ICTR, ECCC, SCSL, IMT, IMTFE, Nuremberg, common plan, common purpose, conspiracy, Extraordinary Chambers in the Courts of Cambodia, Case 002, international criminal law, war crimes, genocide, crimes against humanity, crimes against peace, aggression, ICC
JEL Classification: K14, K33working papers series
Date posted: December 7, 2011 ; Last revised: July 14, 2012
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