Srebrenica: On Joint Criminal Enterprise, Aiding and Abetting and Command Responsibility

Abstract

The objective of this article is to find out how the atrocities in Srebrenica have been reconstructed by the ICTY by the choice of concepts of criminal responsibility that reflect the positions, contributions and relative guilt of the participants. The concepts of joint criminal enterprise, aiding and abetting and command responsibility are therefore the guiding notions in the separate sections. These concepts serve distinct purposes. The joint criminal enterprise doctrine is applied if several persons share a common plan and make some contribution to implement that plan. 'Aiding and abetting' refers to persons 'on the fringes' who 'merely' assist in the commission of crimes, without necessarily sharing the intent of the principals. And superior responsibility reflects the reality that international crimes proliferate when military commanders fail to exercise the effective control that fits their position. However, these are 'ideal types' of concepts of criminal responsibility, the application whereof is inevitably conducive to some distortion of reality. The fact that criminal law follows its own logic should be taken into account, when one assesses the case law of the Tribunal in order to obtain an impression of what 'really' happened.