The concept of a criminal enterprise is not new to legal theory. The law has long known that people can band together with the common purpose to commit crimes. The question is, in such a group, who should be liable for a crime committed by just one member of that group?
More important, when the group contains millions of people, who should be liable when, say, only 10,000 of that group are actively involved in crimes?
This is an important question. Anyone who has lived in Israel can see that Arab attacks against Jews often appear to involve coordination and cooperation, sometimes before the fact, sometimes after the fact. We saw this just recently, when three Jewish teens were kidnapped. The moment the kidnapping were reported, the Fatah (ruling Party of the Palestinian Authority) Official Facebook page urged everyone to destroy all CCTV video so as to thwart the capture of the kidnappers.
Was Fatah aiding and abetting a crime, or did it do something more serious? Did Fatah’s Facebook announcement reveal that it led a collective, criminal cooperative effort?
Certainly, we saw from this horrific kidnapping-murder case that people who seek to kill Jews do plan—and they do need the kind of help recommended by Fatah’s Facebook. The Arab community appears to work together in some way to make sure that crimes not only get committed (Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, CASIN, 2008, p50 ), but get committed by people who can then get away.
The killing of Jews in Israel requires a communal effort. For example, people are needed to justify the killing of Jews. More are needed to assure that the killing of Jews is a desirable value. Then, more people are needed to stoke that desire. More are needed to teach killing tactics. Still more are needed to help make certain those who ‘pull the trigger’ do not get caught, etc.
When Arabs work together in this way to kill or harm Jews, they create a collective intention to commit crimes. Does that collective intention make the entire collective culpable under a legal concept called, the Joint Criminal Enterprise (JCE) (ibid, p50)?
JCE is a legal attempt to deal with a series of problems. Specifically, those who write about large-scale crimes understand that prosecutors have a daunting task to identify collective responsibility. First, criminal law focuses almost exclusively on a general legal principal of individual criminal responsibility. But when a joint criminal enterprise exists, holding criminally responsible only the person who pulled the trigger becomes problematic. As stated in existing legal literature, “to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal Act” (p 51).
Modern moralists are mute on this point. But our Jewish Heritage talks about this question. The Ramban (c1194-c1270), writing on the Biblical reference to the death of the sorcerer Bilaam, states that, “all the conspirators are liable” (Ramban on the Torah, The ArtScroll Series, 2012, Bamidbar, p 576). Certainly, we in Israel understand how Arab communities that surround us act as co-perpetrators in crimes against Israel. Just follow the online sites MEMRI and Palestinian Media Watch. You’ll discover how an entire community is urged to engage collectively in the killing of Jews.
A second problem with collective intention/collective culpability is a practical one. According to the way most law is written, if an entire group is charged with having a collective culpability for a crime, then the law may still require that each individual in that group be tried individually, or in small groups. This could create thousands of trials. This many trials could potentially freeze—or bankrupt—a legal system.
Third, there may still be a question of the acceptance of ‘collective culpability’ within the legal community.
Nevertheless, there may be a growing agreement that, when there exists a collective purpose to commit crimes, “all individuals who contribute to the carrying out of [those] crimes” might be considered culpable (ibid p51). Certainly, it is no longer a ‘sure thing’ that only those who ‘pulled the trigger’ are culpable.
The International legal community needs to look at the Charters of Hamas and Fatah. Those Charters call for the destruction of the state of Israel. The Hamas Charter calls also to kill Jews.
Aren’t these calls really nothing more than statements of criminal intent the collective is asked to support?
By looking at these Charters, the International legal community can begin to define Hamas and Fatah as organizations which gather people together with the common purpose of committing crimes against Israel.
Shouldn’t the legal world begin to look at Hamas and Fatah as a Joint Criminal Enterprise?