The Application of Joint Criminal Enterprise to Complex Top Political Leadership Cases Upheld: The Krajišnik Appeal Judgment
André Klip and Steven Freeland (eds), Annotated Leading Cases of International Criminal Tribunals - Volume 48: International Criminal Tribunal for the former Yugoslavia 2009 (Cambridge/Antwerp/Portland, Intersentia, 2016), pp. 438-449
21 Pages Posted: 24 Nov 2015 Last revised: 17 Sep 2016
Date Written: November 1, 2015
Abstract
In Krajišnik, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) Appeals Chamber reviewed the application of the ICTY’s leading theory for the attribution of crimes to multiple co-perpetrators – joint criminal enterprise (“JCE”) – to the highest ranking defendant then under its custody in the most complex and widespread factual circumstances that had reached the appellate stage at that time. This paper places the Krajišnik Appeal Judgment within the ICTY’s then broader JCE jurisprudence and controversy, in particular the schism that emerged between the Krajišnik Trial Judgment and the Brđanin Trial Judgment which came to opposing conclusions regarding the applicability of JCE to complex top political leadership cases. It submits that the Krajišnik Appeal Judgment served to consolidate and build upon the base provided by the Brđanin Appeal Judgment, in particular the requirement to demonstrate – in some detail – the links between the physical perpetrators and the JCE members. In so doing, the ICTY confirmed the application of JCE to complex and large-scale atrocity cases where the top leadership was unlikely to have had any direct contact with the physical perpetrators on the ground, paving the way for future ICTY cases of this nature.
Keywords: joint criminal enterprise, JCE, International Criminal Tribunal for the former Yugoslavia, ICTY, Krajišnik, Tadić, Brđanin, leadership cases
JEL Classification: K14, K33, K41
Suggested Citation: Suggested Citation