Do the Nuremberg and Tokyo Trials of Major Axis War Criminals Provide a Customary Legal Basis for Joint Criminal Enterprise Doctrine?

102 Pages Posted: 7 Dec 2011 Last revised: 8 Jul 2014

Date Written: October 1, 2010

Abstract

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.

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, K33

Suggested Citation

Clarke, Robert Charles, Do the Nuremberg and Tokyo Trials of Major Axis War Criminals Provide a Customary Legal Basis for Joint Criminal Enterprise Doctrine? (October 1, 2010). Available at SSRN: https://ssrn.com/abstract=1959463 or http://dx.doi.org/10.2139/ssrn.1959463

Robert Charles Clarke (Contact Author)

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