Pregledni rad
Attribution of Criminal Liability: A Critical Comparison of the U.S. Doctrine of Conspiracy and the ICTY Doctrine of Joint Criminal Enterprise from an American Perspective
Mark A. Summers
Sažetak
In its very fi rst case, the Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia (ICTY) confronted the
diffi culty of prosecuting the type of group activity that resulted in mass
atrocities during the Yugoslav war. Strictly applying the principles for
attributing criminal responsibility found in the ICTY Statute, the Trial
Chamber had acquitted Tadić of the most serious charges he faced, the
murders of fi ve individuals that occurred during the ethnic cleansing of
the village of Jaškići. The Tadić Appeals Chamber remedied the problem
by elaborating the doctrine of Joint Criminal Enterprise (JCE),
which it held was customary international law that was encompassed
within the framework of ICTY Statute.
In two of its three forms – JCE I (shared intent) and JCE III (extended
liability for reasonably foreseeable crimes) – JCE closely resembles
liability for substantive crimes committed during the course of a
conspiracy. So-called Pinkerton liability has its roots in a case decided
by the United States Supreme Court in 1946, and although the Appeals
Chamber in Tadić did not rely on specifi cally on Pinkerton as a source
for its holding, the similarities between the two cases are plain.
The purpose of this article, and the lecture on which it was based, is
two compare the two doctrines to determine how they assign criminal
liability and which one better comports with the principle of culpability;
that is, punishing a criminal defendant appropriately based upon
his mental state (mens rea) at the time the crime was committed. The
conclusions reached were mixed.
It appears that Pinkerton attributes liability more broadly to non-
-par ticipating defendants in some cases of shared intent than does JCE
I. This is because a defendant is liable for substantive crimes committed
during the course of the conspiracy so long as he is a member of
the conspiracy, i. e., has intentionally entered into the conspiratorial
agreement with the intent that its objectives be achieved. Other than
agreement, no other act by the non-participating defendant is required;
whereas under JCE I some affi rmative act that actually furthers the
purpose of the enterprise is a necessary pre-requisite for attribution.
In other cases, however, where criminal liability is attributed vertically,
up a chain of command, JCE attribution is broader because for
JCE liability to occur, a defendant need not necessarily ratify the enterprise’s
purpose so long as his acts further it. The necessity of proving
the intent to enter into a conspiratorial agreement thus serves to limit
attribution under Pinkerton in these cases.
Moreover, conspiracy more closely comports with the principal of
culpability since it punishes, as a substantive crime, participation in
group activity whereas JCE expressly does not. Ultimately, the analysis
reveals the apparent need in international criminal law for a theory
which directly punishes participation in an organization which commits
crimes, rather than approximating such punishment by attributing liability
for crimes via JCE to defendants who played no role in them.
Ključne riječi
Hrčak ID:
87023
URI
Datum izdavanja:
15.7.2011.
Posjeta: 738 *