engleski

"Joint criminal enterprise" and collective responsibility: Some philosophical implications of international justice

One of the more controversial issues of both theoretical and applied ethics, also involving other fields of contemporary philosophy, is the problem of collective responsibility. Is there something like collective agency? Can individuals be causally and morally responsible qua members of particular groups or collective enterprises, and if so, under what conditions? In the first part of the paper, I examine some ontological and epistemological aspects of this problem by taking a closer look at the notion of joint criminal enterprise (JCE). Although highly controversial and heatedly debated among law experts, this conceptual and juridical tool has been widely applied by the United Nation’s Criminal Tribunal for the Former Yugoslavia.As I will try to show in the second part, the extensive use of JCE as a kind of “magic bullet” (Schabas) of the Prosecution, seems especially contentious in the actual case against the three Croatian generals (Čermak, Gotovina, Markač) acting as the highest ranking participants of a wide-ranging military operation from 1995 . What makes this case controversial is primarily (but not exclusively) the fact that the Tribunal did not question the lawfulness of the operation “as such” but, as stated in the summary of its judgment from 15 April 2011, focused on the “natural and foreseeable consequences of the execution of the joint criminal enterprise” to which the accused generals (together with Croatia’s entire political and military leadership) have allegedly contributed. The moral significance of this case (as some other similar cases too) can be appreciated in the light of the declared political motives for the establishment of the Hague Tribunal. Among these motives the most often cited – although with thinning enthusiasm – are the individuation of guilt, the reconciliation of conflicting parties, and the restoration of enduring peace in the region. As of now, it seems that none of these grand objectives is likely to be reached – not in the near future, anyway. As I will argue in the third part, at least one of the reasons for this anticipated failure has to do with the Tribunal’s substantive employment of the notion of JCE as a particularly controversial instantiation of the collective agency doctrine.

Joint criminal enterprise; collective responsibility; international justice

nije evidentirano