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.
Highlights
The massacre in Srebrenica, which has officially been recognized as genocide, entailed the commission of countless crimes and the participation of numerous perpetrators
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 joint criminal enterprise doctrine is applied if several persons share a common plan and make some contribution to implement that plan
Summary
The massacre in Srebrenica, which has officially been recognized as genocide, entailed the commission of countless crimes and the participation of numerous perpetrators. It does not seek a normative assessment of the different modes of criminal responsibility in light of basic principles of criminal law.. 2 I will demonstrate that the JCE doctrine has been applied in order to address the criminal responsibility of those who meticulously plan and organize large operations, such as the attack in Srebrenica, sometimes long in advance It serves to link the political leaders with the military who pass their instructions and orders down the chain of command which results in the commission of the crimes. That final section will briefly indicate whether the ICTY has served as an example for other international criminal tribunals and the International Criminal Court (hereafter: ICC)
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