Conspiracy may not be a leading tool of accountability before the ICTY but another alternative and equally controversial concept known as Joint Criminal Enterprise (“JCE”) seems to take precedence. Like the preceding concepts of conspiracy and criminal organisation, JCE is another one of the concepts that have been developed under international criminal law to deal with the issue of collective criminal action. It is suggested by some scholars that JCE is just another form of conspiracy doctrine if not its equivalent, contending that it is basically a product of conspiracy theory blended with doctrines of accomplice liability from civil law jurisdictions.550 This impression has been expressed variously with the JCE concept being described as
547 Popovic et al. (TC), para. 2127.
548 Popovic et al. (TC), paras. 2124, 2125 and 2126. 549
See below Ch 3 section G. II. 2, (ICTR Jurisprudence), for further discussions on the issue of cumulative convictions before the ICTR.
550
Presbyterian Church of Sudan v Talisman Energy 582 F. 3d 244, 260 (2d Cir. 2009), here the court describes JCE as a “conspiracy theory of liability”; R. P. Barret and L. E. Little, 88 Minnesota Law
Review (2003), p. 42; C. Damgaard, Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues (2008), p. 185, observes that the conspiracy concept is one of the founding
bases of JCE; T. Dalton, Cornell Law School Graduate Student Papers (2010), p. 16; G. P. Fletcher, 9 JICJ (2011), p. 186, generally asserting that JCE derives from the Anglo- American conspiracy concept; J. Meirhenrich, 2 Annu. Rev. Law Soc. Sci. (2006), pp. 341-357, describing the theory of conspiracy as revolving around the concept of JCE; J. D. Ohlin, Cornell Law Faculty Publications Paper 24 (2009), p. 196, refers to conspiracy as a mode of liability found in the concept of JCE.
an offshoot of the concept of conspiracy, the modern relative of conspiracy or as analogous to conspiracy theory. At Nuremberg, the terms ‘common plan’, ‘common design’ were used to refer to conspiracy.551 Similar terms have been used interchangeably to describe JCE.552 This makes it essential to analyse the extent to which JCE intersects with the concept conspiracy, if at all. A brief clarification of the genesis of JCE and particulars of its elements is therefore important, to enable one to make a full and clear distinction and explain the relationship between these two concepts.
Although not expressly referred to in the ICTY Statute, JCE was first identified to exist in Article 7 of the Statute in the Tadic appeal judgment, as a form of commission. Article 7 provides that individual criminal responsibility is considered to arise from planning, instigating, ordering, committing or otherwise aiding and abetting the planning, preparation, or execution of any of the crimes in the Statute. JCE forms the basis of holding an accused criminally responsible for the criminal acts carried out by a criminal enterprise involving commission of international crimes, if the accused is found to have participated in or contributed with intent to such criminal enterprise.553 The accused may be held responsible not only for the crimes that he committed or participated in with intent, but also for crimes carried out by other participants in the criminal enterprise for which the accused did not intend or participate in, if in the latter case the crimes were a ‘natural and foreseeable consequence’ of the purpose of the criminal enterprise.
551
See above Ch 3 section I. 2, the Nuremberg indictment refers to a ‘common plan or conspiracy’; also see Ch 3 section III, the indictments of the relevant subsequent tribunals referring to conspiracies pursuant to a ‘common design’.
552
Prosecutor v Dusko Tadic, IT-94-1-I, Judgment (AC), 15 July 1999 (Tadic AC), describes JCE as ‘common criminal plan’ at para. 185, ‘common criminal design’ para. 196, ‘common enterprise’ para. 199.
553 See Tadic (AC), paras. 190, 191, 192.
The ICTY recognises three forms of JCE, the basic (JCE I), systemic (JCE II) and extended forms (JCE III).554 The actus reus of all three forms is similar. First, there must be a group of persons who decide to work towards a certain goal (plurality of persons). Second, a common plan should exist involving the commission of an international crime, the plan need not have existed before commission of the crime it may be spontaneous and may be inferred from the co-operation of several persons in carrying out a criminal act.555 Third, the accused must participate in execution of the common plan, any form of contribution suffices. The mens rea for the three categories however, differs. Under JCE 1 also referred to as co-perpetration cases,556 a group of persons sharing the same intent, plan to commit a certain crime and the crime is carried out according to the plan. Each participant is considered responsible for the crime. In the case of JCE II also known as “concentration camp” cases,557 they involve running a system of ill treatment of prisoners, the accused must be aware (knowledge) of the criminal nature of the system and participate in it with intent to further it. The accused will then be held responsible for all criminal acts committed within the common purpose. The third category JCE III represents the most controversial aspect of JCE. It involves holding an accused responsible for crimes carried out by other participants in the criminal enterprise although they were not part of the common plan, as long as such crimes were natural and foreseeable and the accused willingly took this risk.558 It is not necessary that the accused himself fulfil the mens rea of the crimes involved in this third category.
554
For a detailed analysis on JCE see C. Damgaard, Individual Criminal Responsibility for Core
International Crimes. Selected Pertinent Issues (2008), pp. 127-258; also J. D. Ohlin, 5 JICJ (2007);
N. Piacente, 2 JICJ (2004); S. Powles, 2 JICJ (2004); I. M. Ralby, 28 Boston University International
Law Journal (2010).
555 Prosecutor v Anto Furundzija, IT-95-17/1, Judgement (AC), 21 July 2000, para. 119. 556 Tadic (AC), paras. 196, 197.
557
Tadic (AC), paras. 202, 203.
558 Tadic (AC), paras. 204, 205.
The JCE concept seems to resemble criminal conspiracy in several aspects. Its objective element requirement for plurality of persons and a common plan, merely imply the existence a group of persons who agree to carry out a crime, equating it to a conspiracy.559 While the common plan forms part of the actus reus for JCE, the agreement is the actus reus for conspiracy, both result from the decision of at least two or more persons working together to achieve a criminal objective. It is not necessary for the prosecution to prove an express agreement or common plan, their existence may be inferred from the conduct of a group of persons acting in unison. The extended form of JCE imputes liability to an accused, for criminal acts he did not personally carry out or even have knowledge of as long as they were natural and foreseeable. The legal reasoning in this form of JCE is similar to the legal theory behind the Pinkerton doctrine under Anglo American common law conspiracy.560 In addition, some of the criticisms towards JCE are similar to the criticisms towards the conspiracy concept. Both have been considered to be imprecise and vague doctrines, with vicarious conspiracy liability and JCE III being seen to violate the principle of personal culpability. Similar to conspiracy, JCE has also been considered by one of the Judges of the ICTY as a waste of time and confusing.561 The similarities between the two concepts gives the impression that the ICTY perhaps to fill a gap following the failure to provide for a conspiracy theory that would include all
559
See Prosecutor v Krnojelac, IT-97-25-T, Judgment (TC), Mar 15, 2002, at para. 80 stating that, ‘a joint criminal enterprise exists where there is an understanding or arrangement amounting to an agreement between two or more persons that they will commit a crime’; also J. D. Ohlin, 11 Chicago
Journal of International Law (2011), p. 695, asserting that, ‘[t]he underlying and essential criteria that
unites the two doctrines is the existence of a criminal agreement between the parties’.
560
See above Ch 2 section II. 1.1, Pinkerton Doctrine: A party to a conspiracy is liable for substantive offences committed in furtherance of the conspiracy by co-conspirators, even though the party did not participate in their commission or have knowledge of them, if the offences were reasonably foreseeable; G. P. Fletcher, 9 JICJ (2011), p. 186; J. D. Ohlin, 98 J. Crim. L. & Criminology (2007), p. 149, asserting that JCE is the international version of Pinkerton liability; J. Meirhenrich, 2 Annu. Rev.
Law Soc. Sci. (2006), p. 351.
561
Judge Johan Lindholm in Prosecutor v Blagoje Simic, Miroslav Tadic and Simo Zaric, IT-95-9-T, Judgment, Separate and Partly Dissenting Opinion, (TC II), 17 October 2003, §§ 2 and 5.
the crimes in the Statute, decided to let in through the backdoor, a concept of conspiracy camouflaged in a different name that would be applicable to all crimes, and like the common law conspiracy a convenient tool for the prosecution.562 In fact in one of the cases before the ICTY, a defence counsel submitted that the concept of conspiracy “is precisely the basis of liability for joint criminal enterprise”.563
Despite the above converging structural similarities, conspiracy and JCE have certain diverging aspects. On the one hand, conspiracy is a crime in its own right used to punish inchoate liability, with criminal responsibility accruing the moment the parties agree to carry out a criminal conduct. A conviction for conspiracy does not require its underlying offence to have been carried out. JCE on the other hand, is not a crime in itself but a tool used to attribute individual liability for substantive offences committed by groups, otherwise referred to as a mode of participation. To impute criminal responsibility through JCE the substantive offence must have actually been committed. While the mere act of agreement without more suffices for actus reus in conspiracy, JCE seems to have gone a step further in its actus reus demanding that the individual have made some contribution towards the common plan over and above merely agreeing to it.564 Clearly, the distinction between the two concepts is subtle and the doctrines indeed have some relation, with certain aspects in both
562
See A. Cassese, 5 JCIJ (2007), at p. 110, who describes JCE as the darling notion of the prosecution. It has also been considered a doctrine that may be used by the prosecution in addressing evidential barriers they face in proving international crimes. Compare this with the prosecutorial advantages of a conspiracy charge in common law jurisdictions cited above in Ch 2, section II.1.3; also see R. Wala, 41 Georgetown Journal of International Law (2010), p. 692 asserting that, ‘the absence of conspiracy liability in modern IHL is inextricably linked with the emergence of JCE liability in international criminal law’.
563
See Prosecutor v Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic, IT-99-37-AR72, “Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction-Joint Criminal Enterprise”; see also G. P. Fletcher and J. D. Ohlin, 3 JICJ (2005), p. 548, who view JCE as ‘the law of conspiracy dressed up in the jargon of modern economic activity’.
564
H. Olasolo, 20 Criminal Law Forum (2009), p. 270; R. Wala, 41 Georgetown Journal of
International Law (2010), p. 704.
concepts overlapping.565 The conclusion that may be drawn here is that JCE resembles conspiracy as a form of complicity in common law jurisdictions. In fact, participation in JCE is often evidence of an existing conspiracy.566