The Special Tribunal for Lebanon has returned to interface with the leaking of information about the release of long-awaited indictments, and as the new Lebanese government prepares for the ministerial policy statement.
Whether the issuance date of the indictments has approached or not, it is useful to address a very important and serious issue, about what is being said that the indictment would include charges for members of Hezbollah party.
Perhaps the most serious matter of what is expected from the indictments is what is stated explicitly in Article III of the Statute of the Court on the president's responsibility for the subordinate, and the conviction under the principle called the "joint criminal enterprise” that has been most extensively elaborated on by the prosecutors, defense attorneys and judges at the International Criminal Tribunal for the former Yugoslavia (ICTY), and which was considered a milestone in international criminal justice.
What is this JCE principle? And how is it used in international courts?
The principle can be summarized as follows: each member of an "organized group" is individually responsible for crimes committed by the group within the common plan or common goal, and this condemnation, of course, is distinct of aiding and abetting.
The first traces of joint criminal enterprise doctrine were identified in the post-World War II cases in which this doctrine was used under the name “common purpose” (or joint enterprise) or sometimes even without a specific name.
In Tadic case, the ICTY differentiated between 3 categories under JCE principle:
“Many post-World War II cases concerning war crimes proceed upon the principle that when two or more persons act together to further a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all the members of the group. Close scrutiny of the relevant case law shows that broadly speaking; the notion of common purpose encompasses three distinct categories of collective criminality”.
The three categories of JCE liability can be summarized as follows:
1. The first category is represented by cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role within it), they all possess the intent to kill.
In this case, the accused must voluntarily participate in one aspect of the common design or if he didn’t even personally affect the killing, he must nevertheless intend this result.
2. The second category is “concentration camp” cases. This notion of common purpose is applied to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; i.e., by groups of persons acting pursuant to a concerted plan.
In order to condemn the accused in these cases, three requirements are needed:
(i) The existence of an organized system to ill-treat the detainees and commit the various crimes alleged;
(ii) The accused is aware of the nature of the system; and
(iii) The accused participated in some way in enforcing the system.
3. The third and most disputed form is the extended JCE. In this case, all members of the JCE will be considered criminally responsible if the crime was a “natural and foreseeable consequence” of the realization of the goals of the agreed JCE.
The common purpose, in the Tadić case, was defined as “the policy of committing inhumane acts on the non-Serb civilian population in an attempt to create a Greater Serbia.”. The common purpose in the Stakić case was defined in six strategic goals held by the leadership of the Bosnian Serbs in Bosnia and Herzegovina, formulated by Radovan Karadžić, among which the primary goal was the separation of Serbs from “the other two national communities”. The consolidation of Serbian power in the municipality as a goal, i.e. common purpose, was realized by creating an atmosphere of pressure on the non-Serbian inhabitants of the municipality, carrying out a propaganda campaign spreading terror and hatred among civilians which contributed to the polarization of the population, and the formation of the Omarska, Keraterm and Trnopolje camps.
It is important to note that the Statute of the International Tribunal for the former Yugoslavia did not explicitly recognize the principle of "common purpose" or JCE, but ensured the principle of individual criminal responsibility, not collective one. Despite this, the ICTY Appeals Chamber in its Decision of July 15, 1999, in the Tadic case provided that participation in the joint criminal enterprise is included in the Statute as a form of “commission” under Article 7(1) of the Statute.
Namely, the Appeals Chamber has adopted a broad interpretation that all those who have engaged in serious violations of international humanitarian law, whatever the manner of participation in the perpetration of those violations, must be brought to justice.
The Notion of JCE was subjected to harsh criticism and objections to the validity of this mode of liability; as the “implicit” criminal liability is unacceptable in contemporary criminal law and human rights law; that the notion is quite vague and unclear with infinite possibilities for unlimited interpretations and abuses; the third “extended” form of JCE is conviction without guilt…Despite all these objections, international tribunals used JCE, but selectively.
It is very clear then, and as the Special Tribunal for Lebanon statute stated explicitly, the notion of JCE in article III, that the STL is preparing to indict many of Hezbollah members for the existence of a common purpose or common goals i.e. imposing the control of Hezbollah, or the strengthening of his influence, claiming that the assassination of Rafiq Hariri is a “natural and foreseeable consequence” of the realization of their goals.
As history shows, international criminal tribunals are not immune to politicization, with the approval of these tribunal's prosecutors and judges, including Antonio Cassese, the former president of ICTY. In the light of Selectivity, vague interpretations, and extended forms of liabilities that give the opportunity to indict everyone, it seems that Lebanon is going to face major threats regarding its security, stability and sovereignty.