Joint Criminal Enterprise. The NMTs’ jurisprudence concerning enterprise liability has had relatively little effect on modern JCE doctrine. International tribunals have generally relied on the NMTs to establish the customary status of particular forms of JCE. In Xxxxx, the ICTY Appeals Chamber cited Einsatzgruppen as an example of “basic’ JCE (JCE I) – a correct interpretation of the tribunal’s position, although the Chamber actually cited the prosecution’s opening argument instead of the judgment.123 In Case No. 2, the ECCC relied on Law No. 10, Justice, and XxXXX for the existence of JCE I and “systemic” JCE (JCE II) under customary international law. 124 Finally, in Rwamakuba, the ICTR Appeals Chamber cited Justice and XxXXX as evidence that customary international law permits a defendant to be convicted of genocide via XXX X.125 These citations are clearly justified, although it is important to note that the tribunals did not specifically distinguish between “basic” and “systemic” JCEs. That does not mean that Case No. 2 was wrong to cite the NMT judgments for the customary status of JCE II; the Xxxx tribunal clearly considered the concentration-camp system to be a systemic JCE, as indicated by its rejection of Xxxxxxx’x claim that convicting him for playing a “minor” role in the system constituted guilt by association: As the officer in charge of personnel, [Xxxxxxx] was as much an integral part of the whole organization and as essential a cog in its operation as any other of Xxxx'x subordinates. He was in command of one of the essential ingredients of successful functioning. This has no relation to “group condemnation,” which has been so loudly decried. Personnel were just as important and essential in the whole nefarious plan as 120 Id. at 696 (Xxxxxx, X., dissenting). 121 Xxxxxxx, Trial Judgment, para. 282. 122 Id., para. 282 n. 508. 123 Xxxxx, Appeals Judgment, para. 200 and n. 245. 124 Case No. 2, Appeals Decision on JCE, paras. 65-69. 125 Rwamakuba, Appeals Judgment, paras. 15-22. barbed wire, watch dogs, and gas xxxxxxxx. The successful operation of the concentration camps required the coordination of men and materials, and Xxxxxxx to a substantial degree supplied the men.126 The ICTY takes the position that JCE II is “a variant” of JCE I, because it equally relies on a complex and carefully designed division of labor.127 The Xxxx tribunal’s emphasis on the “coordination” that was required to execute the “nefarious plan” behind the concentration camps indicates that it w...
