Joint Enterprise in International Criminal Law

Law Commission 70 th Session 2018 at p.125). “The relevant practice must be general,
meaning that it must be sufficiently widespread and representative, as well as
consistent” (Draft Conclusions on Identification of Customary International Law,
International Law Commission 70 th Session 2018 at p.135).
19. A rule of customary international law is one which is created and sustained by
“constant and uniform” practice (the International Court of Justice held in the
Colombian-Peruvian asylum case, Judgment 20/11/1950, ICJ Reports 1950 p.266 at
p.270).
20. No, the controversy lay in what the ICTY Appeals Chamber identified as customary
international law, and the basis on which it claimed to identify the rule.
SLIDE 6
Tadic
21. Tadic was charged with crimes against humanity and war crimes. One of the charges
related to the killing of 5 men in the village of Jaskici. There was no evidence linking
him directly to the killing; he was not present in the village. All the prosecutor could
prove was that he was part of a group of armed men who were engaged in ethnically
cleansing the region and that he had previously taken part in his beating of men in a
neighbouring village. Tadic was found not guilty. On appeal by the Prosecutor, the ICTY
Appeals Chamber found Tadic guilty on the basis of what it called a “common criminal
purpose” and a “joint criminal enterprise”.
22. Examining Article 7(1) of the ICTY Statute, the Appeals Chamber began by stressing
that the foundation of criminal responsibility in international law, as much as in
national systems, was the principle of personal culpability. It continued that, looking
at the object and purpose of the ICTY Statute, it was clear that responsibility for
serious violations of international humanitarian law was not limited merely to those
who actually carry out the actus reus of the enumerated crimes. The Appeals Chamber
6