Martic Appeals Decision has More on Joint Criminal Enterprise and Co-Perpetration

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia issued its ruling in Prosecutor v. Martic today. There is a press release on the website, but the judgment doesn’t seem to be posted yet. So here it is: http://www.mediafire.com/?d1qjnujnujt.

Once again, Judge Schomburg is in dissent on the issue of joint criminal enterprise. Readers of this blog will recallthat a few days ago I posted the decision of the Pre-Trial Chamber of the International Criminal Court in Katanga, noting that it essentially rejects the ‘joint criminal enterprise’ theory of liability favoured by the Yugoslavia Tribunal in favour of the ‘co-perpetration’ theory. Judge Schomburg has always been a fan of ‘co-perpetration’. He is right up to date, and cites last week’s ruling of the International Criminal Court in his decision, issued today. He writes: “Suffice it to say that it is not helpful at all, at this stage of the development of international criminal law, that there now exist two competing concepts of commission as a mode of liability.’

Another element of interest in the decision is its confirmation of case law on the definition of ‘civilian’ within the context of crimes against humanity. The Appeals Chamber says that a combatant who is hors de combat is not a civilian within the meaning of crimes against humanity.