An Introduction To The International Criminal Court - Institute for ...

104 introduction to the international criminal court
by this provision in the Rome Statute, 51 the judges of the ICTY have developed
what has come to be known as the ‘joint criminal enterprise’ theory
of liability, and it would seem plausible that ICC judges will be strongly
influenced by this case law in their application of Article 25.
Under the joint criminal enterprise scheme, the participant can be convicted
of crimes committed by others if this was reasonably foreseeable as
a consquence of the criminal plan. For example, in August 2001, Bosnian
Serb leader General Radovan Krstic was convicted as part of a ‘joint criminal
enterprise’ to commit genocide with respect to the Srebrenica massacre
of July 1995. The Trial Chamber was not prepared to find that there was
an operational genocidal plan until the days immediately preceding the
killings, when it said that ‘ethnic cleansing’ had become transformed into a
full-blown plan to destroy physically the Bosnian Muslims in Srebrenica. It
stated that ‘General Krstic could only surmise that the original objective of
ethnic cleansing by forcible transfer had turned into a lethal plan to destroy
the male population of Srebrenica once and for all’. 52 The success of this
and similar prosecutions led the Prosecutor to amend the May 1999 indictment
of Slobodan Milosevic for crimes against humanity and war crimes
committed in Kosovo so as to allege his participation in a joint criminal
enterprise with Bosnian Serb military and civilian leaders. 53
Judges need to be careful that such approaches to accomplice liability do
not degenerate into a form of collective guilt. Alive to the problem, in one
case the ICTY Appeals Chamber noted that the Prosecutor needed to show
more than mere negligence by an accused. ‘What is required is a state of
mind in which a person, although he did not intend to bring about a certain
result, was aware that the actions of the group were most likely to lead to
that result but nevertheless willingly took that risk’, it said. 54
The Rome Statute provisions on criminal participation also contemplate
liability in the case of an attempted crime. 55 If the ultimate goal of the
Court is to prevent human rights abuses and atrocities, prosecution for
attempts ought to be of considerable significance. But the history of war
51 See, for example, Prosecutor v. Tadic (Case No. IT-94-I-A), Judgment, 15 July 1999, para. 222.
52 Prosecutor v. Krstic (Case No. IT-98-33-T), Judgment, 2 August 2001, para. 622 (emphasis added).
53 Compare Prosecutor v. Milosevic et al. (Case No. IT-99-37-I), Indictment, 22 May 1999, with
Prosecutor v. Milosevic et al. (Case No. IT-99-37-I), Amended Indictment, 29 June 2001 and
Prosecutor v. Milosevic et al. (Case No. IT-99-37-PT), Second Amended Indictment, 16 October
2001.
54 Prosecutor v. Tadic (Case No. IT-94-1-A), Judgment 15 July 1999, para. 220. See also para. 228.
55 Rome Statute, Art. 25(3)(f).