Journal Article

Return to <i>Borkum Island</i>

Robert Charles Clarke

in Journal of International Criminal Justice

Volume 9, issue 4, pages 839-861
Published in print September 2011 | ISSN: 1478-1387
Published online September 2011 | e-ISSN: 1478-1395 | DOI:
Return to Borkum Island

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The recent decision of the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia declining to recognize extended joint criminal enterprise (JCE) responsibility as customary law accords with the ambivalence of the material available. This raises corresponding doubts about a new application by the co-prosecutors for extended JCE responsibility to be recognized as an alternative mode of liability in Case 002. The doctrine was not clearly adopted during the drafting of the Charter of the International Military Tribunal, or accepted by the Tribunal itself. Subsequent trials in Nuremberg and Tokyo do not clarify the issue. This is attributed to the calculated nature of the crimes prosecuted, along with the fact that the accused typically served in the highest levels of the state over an extended period. Certain post-trial material and prosecutorial arguments in trials of minor war criminals by the US Army in Germany and Japan show that concepts analogous to extended JCE responsibility were relied upon. However, they were derived from American law. This tendency is also apparent in trials by Australian Military Forces in the Pacific. In light of recent comments of the Appeals Chamber of the Special Tribunal for Lebanon with respect to the formation of custom, it is concluded that, although this fresh case law is relevant, it is still not sufficient to establish the existence of a customary norm.

Journal Article.  10063 words. 

Subjects: Criminal Law ; International Law

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