'Just convict everyone!' Joint perpetration: From tadic to stakic and back again

Abstract

On 22 March 2006, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rendered its Judgment in the Stakić case. One of the issues which the Appeals Chamber addressed propio motu was the mode of liability attributed to the Appellant by the Trial Chamber. In examining the criminal responsibility of Dr. Milomir Stakić for the crimes alleged, the Trial Chamber applied a mode of liability which it termed ‘co-perpetratorship’ (committing ‘jointly with another person’), in lieu of ‘joint criminal enterprise’ (JCE). In so doing, the Stakić Trial Chamber avoided “the misleading impression that a new crime [membership in a criminal organization] not foreseen in the Statute of this Tribunal has been introduced through the backdoor.” However, “[t]he introduction of new modes of liability [co-perpetratorship] into the jurisprudence of the Tribunal”, the Appeals Chamber stressed, “may generate uncertainty, if not confusion, in the determination of the law by parties to cases before the Tribunal as well as in the application of the law by Trial Chambers.” Most notably, some ICTY judges have welcomed and fully approved the JCE doctrine “as an effective tool for overcoming the problems of ascribing individual criminal responsibility for international crimes.” Others hold the opinion that the concept of ‘joint criminal enterprise’, since its foundation and integration into the jurisprudence of the ICTY by the Tadić Appeals Chamber, “has caused confusion and a waste of time” and has been considered as a doctrine “of no benefit to the work of the Tribunal or the development of international criminal law.” This note will examine, therefore, both modes of liability (‘joint criminal enterprise’ and ‘co-perpetratorship’) in light of the Stakić Appeals and Trial Judgments.