Joint Enterprise in International Criminal Law

sufficient that each defendant participated in the unlawful act of violence which
caused death. It cannot be said with any conviction that Essen Lynching is anything
other than a JCE I case. The lynching was not outside the common criminal purpose.
SLIDE 11
Borkum Island – United States v Kurt Goebell et al.
41. Borkum Island also concerned the lynching of airmen, this time American airmen, by
German soldiers and civilians. The airmen had been forced down on the island of
Borkum, taken prisoner and then forced to march under military guard through the
streets. They were made to pass between members of the Reich’s Labour Corp, who
beat them with shovels, upon the order of an officer. They were then struck by
civilians. As they passed the mayor of Borkum he shouted at them, inciting the mob
to kill them like dogs. The Prosecutor put his case on the basis that all the participants
shared the same criminal intent, namely to commit murder. Again, no Judge Advocate
stated the law applied by the court or explained the verdicts. Some defendants were
convicted of both “participating in the killing of the airmen” and “participating in
assaults upon the airmen”; others convicted only of participating in the assaults. The
ICTY Appeals Chamber presumed that the distinction in verdicts was because some of
“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 their victims”. An
alternative explanation may simply have been that the court found that all
participated in the assaults, only some defendants, such as the mayor who incited the
mob to kill them, shared the intention to commit murder. Again, Borkum Island
provides no sound basis to find that customary international law attaches criminal
liability for offences committed by others outside the common design and based on
foresight alone.
SLIDE 12
12