Causa Causea Est Causa Causati (The Cause of a Cause is Also the Cause of the Thing Caused): The Analysis of the Third Category of Joint Criminal Enterprise Doctrine – Finding Justifications for its Existence and Balancing its Scope in International Criminal Law

Abstract

Liability based on participation in a Joint Criminal Enterprise (JCE) aims at establishing direct responsibility for the commission of the crimes by others. It allows to establish accountability for the full gravity of the crimes where exact role of each participant, especially the role of a person in a position of authority, may be obscured by complexity and the massive scale of the crime. JCE is also referred to as Common Plan, Common Design or Common Purpose. What makes JCE contentious is that it cannot be explicitly found in any of the statutes of ICTY or ICTR, but the judges found that it is implied in Article 7(1) ICTY and Article 6(1) ICTR, which deal with various forms of accessorial liability. There are three categories of collective criminality based on JCE doctrine.

The Third category is exceptionally contentious as it establishes criminal liability based on foreseeability and the voluntary taking of the risk that a crime outside the common plan or enterprise be perpetrated. The scope and mode of the Third category of JCE liability has been subject to continuous criticisms fundamentally due to its remoteness from the basic legal principle that criminal guilt is personal, which requires a degree of mens rea for the establishment of individual criminal responsibility. As a result of this criticism, JCE has been accused to be a ‘catch all’ provision.

In their attempts to settle these allegations and to find appropriate application of JCE doctrine in the international criminal law, the ad hoc Tribunal judges changed the scope and mode of JCE application on a case-by-case basis. This consequently resulted in inconsistent, confusing and undefined doctrine. The establishment of criminal responsibility based on collective actions is extremely difficult mainly due to the remoteness of the offender from the actual scene of crime. International crimes, such as crimes against humanity and genocide, tend to be the expressions of collective criminality, therefore, without liability based on JCE many grave offenders would go unpunished. Nonetheless, the establishment of criminal responsibility based on JCE, as in any other case, must be inline with the principle of legality.

This paper endeavours to find justifications for the existence of the Third Category of JCE doctrine in international criminal law and attempts to balance its scope and application in international jurisprudence. To accomplish this task, the paper is divided into three main parts:

The first part attempts to find justifications for the existence of the doctrine, including its Third category, in international customary law and brings the doctrine in line with the principle of legality. In this process, the author places the development of the doctrine in the context of the tensions created by the multipartite composition of international criminal law. Subsequently, the Post Second World War cases, international instruments and national legal traditions are analysed in order to find justifications for the customary status of extended JCE. By providing a critique of the critics and expanding on the judges reasoning in Tadic, the author places the doctrine inline with the principle of legality.

The second part of this paper analyses the application of extended JCE in the case law of the ad hoc Tribunals. The author attempts to settle some of the issues raised by proposing an appropriate scope of the doctrine’s application while remaining in line with the principle of legality. Particular attention is dedicated to the application of extended JCE to the special intent crime of genocide, which requires the establishment of two subjective elements before liability can attach. It is reasoned that since Tadic did not deal with the crime of genocide, the Appeals Chamber had to clarify the elements of JCE for special intent crimes in subsequent cases. To accomplish this, the Appeals Chamber in Brdanin and later in Martic and Karemera cases provided clarification to its reasoning in Tadic and confirmed this line of authority for special intent crimes.

The author adopts the view that because JCE is a derivative liability, the second subjective element ‘intent to destroy…’ can be proved through (or derived from) the actus reus (participation in a common purpose) and mens rea (foreseeability that genocide may eventuate out of that common purpose). The author concedes that this method departs from the strict adherence to the subjective elements listed in Articles 4(3)(e) ICTY, 2(3)(e) ICTR, however, stresses that these elements are proved indirectly through a derivative nature of JCE and it becomes unnecessary to demonstrate that a non-physical perpetrator possessed ‘direct’ genocidal intent. JCE’s derivative nature, allows us to look at the method of showing intent rather than being concerned with having to show actual intent. The Third category JCE does not change the elements of offence, but it affords a method for proving intent through foresight. It follows from this that the special intent requirement for genocide is in addition to and not in preclusion of the individual responsibility requirements under Articles 7(1) ICTY and 6(1) ICTR as it has been suggested by some critics. In summary, only if extended JCE is accessorial and derivative liability, can it be applicable to the crime of genocide. Furthermore, the offenders must be properly defined and the scope of the enterprise appropriately construed. The scope of JCE should require at least significant and in certain cases substantial contribution by the defendant towards the common criminal purpose, and there ought to be continuity in the structure and personality of the enterprise in which he participates with full or implied knowledge of the activities within. The final part of the paper takes a glimpse at the possible future of JCE, including its extended form, in the forthcoming jurisprudence of the International Criminal Court. The author demonstrates that the construction of the provisions of the Rome Statute, specifically Article 25(3)(a) and (d), provides for the possibility to continue the application of the doctrine in the future case law.

This paper suggests that the liability based on the Third category of JCE came from the well-established principles in international customary law; it is a derivative liability, which allows for a method of proving intent, and inter alia is in line with the principle of legality. Nonetheless, the doctrine needs to be defined more accurately to avoid over criminalisation and confusion in the future.

Keywords: joint criminal enterprise, third category JCE, extended JCE doctrine, international criminal law, human rights law, transitional justice, sources of international criminal law, liability theories, liability doctrine, guilt by association, co-perpetrator liability, group crimes, Tadic, Brdanin