Friday, 29 April 2011

»Joint Criminal Enterprise« – What is that?

»Joint Criminal Enterprise« – What is that?


Milan Vukovic, PhD

If we define international criminal law as a set of norms with the objective of suppressing crimes that cross the borders of individual countries, that is, crimes that violate certain basic values of humanity and of the international legal order, it is obvious that neither The Hague Tribunal nor its Statute can be grouped in the traditional concept of international criminal tribunal with legal competence.

This specific characteristic of The Hague Tribunal is obvious from the decision of its founding, because it was established by the UN Security Council, under the authority of Chapter VII of the Charter of the United Nations, while its competence was defined in Security Council Resolution 827 from May 27, 1993, paragraph 2, as well as the Statute, which is an integral part of the decision on the establishment of the tribunal. The judges themselves are authorized, under Article 15 of the Statute, to pass rules on the procedure and on evidence for prosecution prior to the start of trial and of the appeal procedure on the evidence procedure, on the protection of victims and witnesses, and on other related matters.

Although resolution 827, paragraph 2 emphasizes and defines the competence of the ad hoc established International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, the same provision is formulated in the same manner in Article 1 of the Statute. It is necessary to emphasize the power to prosecute »persons«, meaning natural persons.

I believe that it is necessary to emphasize that, in Article 2 of the Statute, stated in detail are acts considered grave breaches of the Geneva Conventions of August 12, 1949, as well as those »ordering grave breaches to be committed«, because the Croatian state leadership had constantly insisted that their defense efforts be supervised by international forces on the front lines, and had insisted that the international forces undertake certain efforts so that this would not be the obligation of the Croatian Army.

The Statute of the International Criminal Tribunal in The Hague introduces the criminal offence of GENOCIDE in Article 4, whereby it is first provided in a descriptive manner, stating that the International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article, or committing any of the acts enumerated in paragraph 3 of this article. The definition of genocide is provided in paragraph 2 of this article, defining it as: »Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a) killing members of the group,

b) causing serious bodily or mental harm to members of the group,

c) deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part,

d) imposing measures intended to prevent births within the group,

e) forcibly transferring children of the group to another group«.

Paragraph 3 of Article 4 defines the acts that shall be punishable:

a) genocide,
b) conspiracy to commit genocide,
c) direct or public incitement to commit genocide,
d) attempt to commit genocide,
e) complicity to genocide.

In Article 5 of the Statute, all acts against humanity are specified: a) murder, b) extermination, c) enslavement, d) deportation, e) imprisonment, f) torture, g) rape, h) persecution on political, racial or religious grounds, i) other inhumane acts.

From all of the above, it follows that the elements of the incrimination, that is, the characteristics of the criminal act, must be indisputably defined by the norm that describes the act, because judges are not permitted to resort to analogy. If it is shown that there is a need, in addition to the Statute of the International Tribunal for the Former Yugoslavia, to call on an additional source of international law, then the general principles of law in question must be recognized by the civilized world, as in Article 31 of the Rome Statute of the International Criminal Court, which defines the grounds for excluding criminal responsibility in general.

With the belief that the provisions of the Statute on the competence of the International Tribunal for the Former Yugoslavia are insufficient, it is obvious that the prosecution and the judges themselves at times, interpret these voids at will in the manner that it is like there are no general rules on the International Criminal proceedings, as a consequence, they take on a quasi-legislative role when adopting and supplementing rules of procedure and evidence.

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed

This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations

The criminal offence must be committed after the adopted regulation, and the punishment must be prescribed prior to commitment itself (Article 31 of the Croatian Constitution, Article 7 of the European Convention).

It is indisputable that contemporary criminal law excludes collective responsibility of one side in an armed conflict, war, so the International Tribunal, also known as The Hague Tribunal, was founded on the principles of individual criminal responsibility, rejecting collective responsibility of individual nations or states for possible crimes committed in its name, because criminal law, in principle, excludes strict liability.

At the beginning of 2004, in the month of March, partially changing the Indictment against general Gotovina, Cermak and Markac, the prosecution in The Hague used the qualification of guilty under the all-encompassing expression »joint criminal enterprise«. With this qualification, the prosecution, and the Tribunal as well, because the Tribunal provides approval of the Indictment – which is, otherwise, nonsense – attempts to qualify the Homeland Defense War, which took place on Croatian territory to defend against Serbian-Montenegrin aggression, the uprising of a part of the Serbian population in Croatia and the full military attack by the former Yugoslav Army, as a crime because Croatians managed to defend and liberate their territory.

The »criminal enterprise« qualification is not only an insult to the legal facts in relation to the »right to peace«, but rather this qualification attempts to annul, in relation to Croatia's defense and victorious military operation, the very meaning of freedom and constitutional independence of Croatia, using the term 'crime' to depict its fight for freedom!

Inadequate knowledge of the facts that emerged with the breakup of the European division into blocs in those nations which, at that time, were structured as states, and the Croatian nation, which did not have its state independence, resulted in the mixing of the terms aggression and defense to the degree that the battle in defense of freedom and independence has been labeled a »criminal enterprise«!

When the Hague Tribunal's practice to accuse Croatia's victory and the persons who won these victories through battles appeared, the Constitutional Court of the Republic of Croatia responded with its REPORT no.: U-X-2271/2002, dated November 12, 2002 (Official Gazette, no. 133/02, November 15, 2002).

»The activities of the armed forces of the Republic of Croatia, conducted with the objective of liberating parts of the occupied territories of the Republic of Croatia, including removing direct threats to the lives of inhabitants and preventing the destruction of real estate caused by armed (military and paramilitary, para-police and/or terrorist) attacks by occupying forces undertaken from occupied territories, were in accordance with the constitutional obligation of the armed forces of the Republic of Croatia to protect the sovereignty and independence of the Republic of Croatia and the defense of its territorial integrity.

When liberating the occupied territories of the Republic of Croatia, the armed forces of the Republic of Croatia acted in the name of and according to the authority of a contemporary, sovereign, internationally recognized state.

By liberating areas of the Republic of Croatia in which an unconstitutional entity without democratic legitimacy and international recognition was formed, the armed forces of the Republic of Croatia suppressed the armed uprising and removed the results of external armed aggression. In these territories, the armed forces simultaneously introduced the national (constitutional-legal) and, in doing so, the international-legal order as its part, with all rights, obligations and responsibilities that arise from the Constitution and the legislation of the Republic of Croatia and from international legal acts that the Republic of Croatia has accepted and ratified.

The Constitutional Court regards such a constitutional position and role of the armed forces of the Republic of Croatia during the Homeland Defense War indisputable and irrefutable«.

Milan Vukovic: »JOINT CRIMINAL ENTERPRISE« – What is that?

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