Chronology of Events as a Refutation of Allegations of Participation of the Serbian Leadership in a “Joint Criminal Enterprise” in Bosnia and Herzegovina

Abstract

This paper examines the doctrine of participation in a joint criminal enterprise (JCE), which, although not expressly provided for in the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), was nevertheless established and extensively applied in the jurisprudence of the Tribunal and its Office of the Prosecutor. As developed in ICTY case law, JCE functions as a mode of liability enabling the attribution of criminal responsibility to individuals participating in a common criminal purpose . From the perspective of the principle of legality in criminal law, this doctrine raises significant concerns, as it risks introducing elements of legal uncertainty and retroactive expansion of criminal liability. Moreover, its application has arguably contributed to the politicization of indictments and judgments rendered in The Hague—an outcome the drafters of the ICTY Statute sought to avoid, inter alia, by excluding the crime against peace from the Tribunal’s jurisdiction. At the core of the concept of joint criminal enterprise lies the existence of a common purpose, objective, or plan, the implementation of which results in crimes falling within the so-called “crime base” (in the terminology employed by the ICTY). Although later indictments articulated this element in different terms, the alleged purpose of the joint criminal enterprise in cases involving Serbian political and military leaders was framed as the creation of a “Greater Serbia.” However, an analysis of official statements, documentary evidence, and actual conduct suggests that, throughout the Yugoslav crisis—including in Bosnia and Herzegovina—the primary objective of the Serbian side was the preservation of the Yugoslav state. Other political goals appear rather as concessions and strategic withdrawals vis-à-vis opposing parties, undertaken with the overarching aim of maintaining peace. Furthermore, a chronological examination of relevant events—particularly political decisions adopted by the Serbian leadership during the period covered by the alleged joint criminal enterprise—indicates that their actions were largely reactive in nature. Specifically, they constituted responses to what were, as a rule, unlawful acts by opposing parties, aimed at compensating for losses inflicted upon the Serbian population through such conduct. This circumstance undermines the assertion of the existence of a preconceived criminal plan attributed to the Serbian side, as the very notion of such a plan presupposes the ability to anticipate unlawful actions of others—an assumption that is neither logically sustainable nor factually substantiated.