February 11, 2005

On January 22, 2005, a large group of law professors, politicians, and artists gathered in Belgrade’s Sava Center to support Vojislav Seselj, indicted by the International Criminal Tribunal for the Former Yugoslavia (ICTY). A number of participants repeated two legal arguments which, coming from well-known lawyers, purport to represent authoritative criticism of the tribunal. Both arguments, however, are patently false.

Vojislav Seselj, according to the lawyers supporting him, stands accused of a “crime of opinion.” In addition, ICTY prosecutors have allegedly indicted him for an offence unknown in any national jurisdiction, or even the ICTY Statute – participation in joint criminal enterprise.

It takes little effort to grasp the frivolity of the first claim. Even an averagely informed layperson must suspect that Seselj stands accused of something more serious than speaking his mind. In fact the offence is called “incitement to commit (war) crimes” and is proscribed in Serbian law as well.

In March 1992, according to the indictment, Seselj spoke the following words at a rally in Mali Zvornik, located across the Drina river from Zvornik: "Dear Chetnik brothers, especially you across the Drina river, … we are going to clean Bosnia of pagans and show them a road which will take them to the east, where they belong." The indictment also alleges that Seselj made a speech in Hrtkovci (Vojvodina) calling for the expulsion of Croat civilians. The strength of the prosecution evidence to support the charges remains to be seen, but to call the charges criminalization of “free speech” takes lot of audacity indeed.

The second allegation made at the Sava Center is that ICTY prosecutors have invented a new doctrine of joint criminal enterprise. To demonstrate the fallacy of this allegation requires a somewhat longer explanation, because the concept of joint criminal enterprise is still opaque to most observers.

Under customary international law, a person participates in a joint criminal enterprise when he knowingly participates in a criminal activity with others, shares a common plan or purpose with them, and contributes to achievement of that purpose. Most importantly, he is liable not only for the principal offence to which he assented, but also for all other illegal acts that happen as natural and foreseeable consequences of that activity – even if he did not explicitly assent to them.

For example, if during an armed robbery one group member waits outside in the car, and another member kills a person in the bank, the person outside will be responsible not only for the robbery (which he agreed to) but also for the killing (which he may not have agreed to), but which was foreseeable from his participation in the armed robbery). Another example: a group of people has a shared intention forcibly to remove members of one ethnicity from their town, village or region (to effect “ethnic cleansing”); in the course of doing so, one or more of the victims is shot and killed. Those among the participants in the joint criminal enterprise who agreed only to ethnic cleansing, shall be liable for the killings as well, since these are natural and foreseeable consequences of the “cleansing.”

It is the latter, of course, that Seselj is charged with. Other ICTY indictees charged with participation in joint criminal enterprise, the purpose of which was ethnic cleansing, include: Slobodan Milosevic, Nebojsa Pavkovic, and Milan Babic, and on the Croatian side, Ante Gotovina and Ivan Cermak. The purpose of the joint criminal enterprise in the ICTY case against Fatmir Limaj, Haradin Bala, and Isak Musliu, was different: to target Serb civilians and perceived Albanian collaborators for intimidation, imprisonment, violence, and murder.

So, did the ICTY prosecutors invent this doctrine? Hardly. The decision of July 15, 1999, by the ICTY Appeals Chamber in the Tadic case, gives a detailed account of post-World War II cases in which the doctrine was used, albeit under different term (common purpose doctrine) or under no specific name. The Chamber also surveyed jurisprudence in national legislations which had known the doctrine before the ICTY was established.

In the aftermath of World War II, the courts established by British and U.S. occupying powers in Germany applied the doctrine in the trials against German Nazis. So did the Italian Supreme Court in the trials of Italian fascists. As for non-World War II related cases, the ICTY Appeals Chamber cited numerous decisions by Italian courts from 1960s to 1990s, decisions by the French Court of Cassation from 1947 and 1984, as well as jurisprudence in England, Wales, Canada, the United States, Australia, and Zambia.

Finally, while it’s true that the ICTY Statute does not explicitly use the term “joint criminal enterprise,” the ICTY Appeals Chamber has explained that participation in joint criminal enterprise is encompassed by the explicitly mentioned “commission,” from article 7(1) of the Statute.

The Sava Center group appears to have forgotten what every law student knows: that before applying the law to the facts, one must first know what the law says.