Milošević and Joint Criminal Enterprise
University of Amsterdam*
In order to hold Milošević responsible for genocide, the Prosecution opted to use the doctrine of joint criminal enterprise. JCE is a popular and serviceable device to accentuate the collective dimension of international crimes. Moreover, the choice of JCE was propitious for evidentiary reasons, as it relaxed the burden on the Prosecution to prove that Milošević harbored a special intent to destroy a group in whole or in part; under JCE, simple knowledge could suffice. However, precisely this final point turned out to be counterproductive, because it thwarted the Prosecution’s previous efforts to portray Milošević as the spider at the center of the web, who acted in concert with the Bosnian Serb leadership to plan, prepare, and orchestrate atrocities.
Although it is a natural inclination to blame the system in case of widespread systemic criminality,1 there are good reasons for resisting this temptation. For one thing, hiding behind “the system” offers splendid opportunities to avoid individual responsibility, implying that, really, no one person could possibly be held directly responsible. Collective responsibility snares all in a common denunciation, whereas individual responsibility makes distinctions and releases the innocent from a shared stigma.2 Against this backdrop, it is sensible to pay heed to the famous dictum of the Nuremberg Tribunal that crimes are committed by men and not by abstract entities.3
On the other hand, one cannot ignore the collective dimension of systemic criminality. War crimes, crimes against humanity, and genocide—in rising order—require vast resources, meticulous planning, and the common and concerted effort of planners and willing executioners. Moreover, it is precisely the intoxicating collectivity that unleashes a special dynamism and earns systemic criminality its hideous and fearful reputation. As Drumbl also suggests, international criminal trials that only focus on individual contributions and responsibilities lose sight of this important dimension.
The Milošević trial reflects the eternal vacillations between individual responsibility and collective guilt. Prosecutor Carla Del Ponte emphasized the individual component in her opening statement at the trial:
The accused in this case, as in all cases before the Tribunal, is charged as an individual. He is prosecuted on the basis of his individual criminal responsibility. No state or organization is on trial here today. The indictments do not accuse an entire people of being collectively guilty of the crimes, even the crime of genocide. It may be tempting to generalize when dealing with the conduct of leaders at the highest level, but that is an error that must be avoided. Collective guilt forms no part of the Prosecution case.4
At the same time, she was obviously not blind to the fact that Milošević could have committed the crimes he was accused of only by acting in concert with others and by employing the vast human resources he had at his disposal as head of state.* Thus despite her rhetorical insistence that the individual man was on trial, the implicit task facing the Prosecution was to prove, first, that Milošević had acted as part of a collective, and second, that he had been at the apex of this collective.
In theory, three concepts of criminal responsibility were available, each with its advantages and drawbacks. The Prosecution could have chosen to charge Milošević with aiding and abetting (or complicity in) genocide. The evidential hurdles would have been surmountable, but the option was not very popular from a public relations perspective as it would trivialize Milošević’s involvement by portraying him as a secondary figure. The second possibility, superior responsibility, would have involved problems of hierarchy, as the doctrine requires that the superior exercises “effective control” over his subordinates.5 Milošević was not the de jure superior of the Bosnian Serb leadership, and as Hartmann and Prelec both suggest, the Prosecutor would have faced grave problems in proving that Milošević wielded complete power and authority over Karadžić and Mladić.
Ultimately, the Prosecutor opted for the joint criminal enterprise or JCE doctrine—the favorite toy of prosecutors in the international realm because of its extremely broad reach, but also the tool that, for the same reason, best captures the collective dimension of systemic criminality.†
As several other authors have shown, the gist of JCE is that the members of the enterprise share a common frame of mind, and unite to achieve a goal that involves criminal acts (or is itself criminal), and each of them offers a material contribution in order to accomplish that goal. JCE doctrine has a mixed pedigree, combining features of conspiracy and complicity;‡ however, the mens rea and actus reus elements of JCE’s close relatives have been considerably diluted in the new creation. Unlike conspiracy, JCE does not require an explicit agreement between or among the participants in the common venture.6 Moreover, the common purpose is weakened in that each participant in a JCE can even be held responsible for crimes outside the common plan that were a natural and foreseeable consequence of executing the plan.7 Finally, various Trial Chambers of the ICTY have been evasive in indicating what kind of material contribution to the common plan an accused has to make, effectively hollowing out the actus reus requirement8—a dilution purposefully undertaken to broaden the scope and applicability of the doctrine as much as possible.9
However, the Milošević trial demonstrates that the doctrine’s elasticity has its limits, and courts that overstretch the concept of JCE, risk losing credibility. The restrictive parameters in Milošević were the charge of genocide—with its special intent requirements—and the Accused’s prominent position at the center of power—but also far from the killing fields. There was an inherent contradiction between the Prosecution’s urge to present Milošević as a devious spider in the web, determined to accomplish the ethnic cleansing of Bosniaks, and its use of a concept of criminal responsibility that precisely served to relax both the stringent mens rea and the need for unanimity among the JCE’s members.
In its decision on the Amici Curiae’s Rule 98bis motion for acquittal at the end of the Prosecution case, the Milošević Trial Chamber considered if JCE III—which effectively imputes the intended acts of one member of the common plan to others who did not intend them—could be reconciled with genocide’s requirement of a special intent to destroy a group in whole or in part.10 The Trial Chamber referred to a decision of the Appeals Chamber in the Brđanin case, which held that there is no incompatibility between the requirements of genocide and the mens rea needed for conviction under JCE III.11 The Milošević Trial Chamber subsequently held that it was therefore “not necessary for the Prosecutor to prove that the Accused possessed the required intent for genocide before a conviction can be entered on this basis of liability.”12 Similarly, following earlier decisions, the Chamber held that neither an accomplice nor a military commander needed to possess the special intent for genocide.13
Now, in the abstract there is nothing wrong with these findings. It is only natural that in a larger group people will have different levels of knowledge and aspirations, even if they have—silently—agreed to embark on a common course of action.14 And so, in a sense, the Chamber’s flexible reading of both JCE and genocide not only fit the Tribunal’s previous jurisprudence but also responded to the complexity of the Yugoslav wars. But in the specific context of the Milošević trial, this doctrinal move was rather too ecumenical: It did not tally with the Prosecution’s efforts to portray Milošević as the devious architect of a genocidal policy.
To begin with, there are, of course, factual challenges to the Prosecution’s account of Milošević’s role. As the documentary evidence Prelec reviews demonstrates, Milošević did not spur and control the massacres in Bosnia—he may well have been aware of the killings, but he did not consent to them. Milošević by no means agreed with the Bosnian Serb leadership’s decision to shell and siege Sarajevo,* nor are there strong indications that Milošević wielded full control over the leading Bosnian Serbs or acted in concert with them in the preparation of heinous crimes.* At a more structural level, Hartmann’s observations are equally devastating to the Prosecution’s claim that Milošević occupied a central position in a genocidal JCE. They also show us something about the problems that, ironically, JCE generates for anyone trying to forge a coherent strategy to prosecute multiple actors for a related set of crimes.
Hartmann contends that the Prosecution’s initial tactic was to demonstrate that Stanišić and Simatović were the essential go-betweens linking Milošević and the Bosnian-Serbian leadership. Stanišić and his deputy Simatović had “controlled and directed Serbia’s covert Special Forces in some of the most brutal campaigns against non-Serb civilians[,]” and, according to witnesses, “[i]t was through Stanišić that Milošević exerted control over Mladić and Karadžić, and also controlled the Serbian SDB.”15 Their position as intermediates was not only indispensable to the factual projection of Milošević’s power but also an irreducible link in the legal argument, because, as Hartmann correctly explains, “[i]f Milošević was able to foresee the risk of genocide, as the charges against him implied, logically so did Stanisić and Simatović, who were informing him of everything that occurred in the field.”16 The Prosecution’s theory placed Milošević at the center of a web of criminal relationships, but the logic of JCE required that there be others in the web. After all, it is only through his intermediaries that Milošević could have the much reduced level of knowledge about events in Bosnia that even a doctrinally relaxed JCE theory requires.†
However, in its subsequent case against Stanišić and Simatović, the Prosecution suddenly changed course, “treating the Srebenica genocide as a parallel criminal plan developed separately from the overarching JCE and with a separate and specific intent—in this case, a genocidal one—which was not shared by Stanišić and Simatović.”17 It is of course a matter of speculation why the Prosecution reversed its initial point of view—Hartmann suggests that the ICTY wanted to protect the Karadžić case and did not wish to contradict the ICJ’s findings in Bosnian Genocide by continuing to assert the active involvement of the Serbian state in the genocide at Srebrenica—but the division of the JCE fatally affects the pristine portrayal of Milošević as a spider weaving a web of genocidal purpose.
Two elements—one of a factual nature and one the consequence of a deliberate change in prosecutorial policy—refute the image of an all-encompassing JCE engaged in genocide and headed and steered by Milošević. First, the information available, aptly presented by Prelec, shows Milošević in a less prominent leadership role for the crimes in Bosnia, picturing him at most as a reluctant or indifferent accomplice who was aware of the possibilities of great harm but did not consent to the course of events. Ironically, the Prosecution’s use and interpretation of JCE, relaxing mens rea for genocide—which subsequently was condoned by the Trial Chamber—allowed this different presentation of Milošević’s’ position. However, this ultimately proved to be counterproductive as it eroded the Prosecution’s previous efforts to portray Milošević as the auctor intellectualis of genocide. But the major blow to the structural cohesion of the JCE has been administered by the Prosecution itself, which, by eliding the indispensable links between Milošević and the acts of genocide, has caused the whole JCE to fall apart.
In the end, we have to conclude that the abstract logic of legal constructs such as JCE does not always square with murky and complicated realities. All is not lost—we are still able to say legally coherent and consequential things about the role of Belgrade in the Yugoslav wars: As Hartmann also shows, and Nielsen too, there is compelling evidence revealing that Milošević had a much tighter grip on people and events in Croatia and Kosovo. But to hold him posthumously responsible for the genocide in Bosnia would require us either to ignore much of the factual evidence, or to accept an extremely broad version of JCE, arguably incompatible with the crime of genocide itself. An alternative reading is available—that Milošević engaged in an aggressive policy toward his neighbors, and that some individuals over whom he wielded insufficient control benefited from the situation in order to accomplish their own dismal goals—and in the logic of the law, such an alternative must have consequences. The conclusion that Milošević was no Hitler may be disappointing to those who search for one person incarnating all evil, but that disillusionment is the price we pay for our determination not to let legal constructs take control of and distort historical truth.