Joint Enterprise in International Criminal Law

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Webinar, 21st May 2020

Joint Enterprise in International Criminal Law: An Overview

SLIDE 1

1. Good afternoon and welcome to this 5 Paper Buildings webinar on Joint Enterprise in

International Criminal Law. In the title the webinar is described as an overview, and I

will attempt to condense down what is a fascinating and complex subject into a broad

thread. If you are encouraged by this talk to read further and more deeply into the

subject than I can cover here, I would be very happy. Before I turn specifically to joint

enterprise, and in particular, the sub-category known as extended joint criminal

enterprise or JCE III, let me begin with a general word or two about international

criminal law and its history.

SLIDE 2

2. The origins of international criminal law lie in the tribunals that tried members of the

Axis powers after WWII on the basis that wrongdoing of such seriousness and

magnitude could not be left unpunished by the international community.

3. Some 50 years later, temporary ad hoc international criminal tribunals for the former

Yugoslavia (the ICTY) and Rwanda (the ICTR) were established by the United Nations.

Created in 1993, the ICTY operated until 2017; the ICTR between 1994 and 2015. Their

mandate is continued today, however, by the International Residual Mechanism for

Criminal Tribunals (the IRMCT), taking over the prosecution of remaining fugitives,

conducting appeals and retrials, and enforcing sentences pronounced by the ICTY and

the ICTR.

4. In 1998, a draft statute for a permanent International Criminal Court (the ICC) was

adopted by an assembly of States. Known as the Rome Statute of the International

Criminal Court, it was ratified in April 2002 and the jurisdiction of the ICC commenced

on 1 July of that year.

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5. Following the Rome conference, other ad hoc tribunals with specific jurisdictions have

been created to try international crimes including, but not limited to:

• the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes

committed during the period of the Democratic Kampuchea (the ECCC) – est.2003

• the Special Tribunal for Lebanon (the STL) – est.2009

• The Kosovo Specialist Chambers & Specialist Prosecutor’s Office (the KSCPO) –

est.2015

6. Although the creation of the ICC, and the ECCC and STL, are associated with the United

Nations, they sit separately from each other and from the structure of the

ICTY/ICTR/IRMCT tribunals.

7. The KSCPO, in further contrast, was established by a domestic law passed through the

Kosovo assembly and although it has its seat in the Hague, and is staffed with

international judges and prosecutors, the institution is part of the judicial system of

Kosovo.

SLIDE 3

8. Each of those courts (using that term to cover each of the courts, tribunals and

chambers referred to above) has a founding statute setting out the jurisdiction of that

court, the offences which it will try, basic principles, rights of suspects and defendants,

and rights of appeal et cetera.

9. There are also rules of procedure and evidence that each court has adopted.

10. So, for example, the core texts for each of the above courts are as follows:

ICC

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The Rome Statute of the International Criminal Court (‘the ICC Statute’)

ICC Rules of Procedure and Evidence

ICTY/ICTR/IRMCT

Statute of the International Criminal Tribunal for the Former Yugoslavia (‘the ICTY

Statute’)

Statute of the International Criminal Tribunal for Rwanda (‘the ICTR Statute’)

Statute of the International Residual Mechanism for Criminal Tribunals (‘the IRMCT

Statute’)

ICTY Rules of Procedure and Evidence

ICTR Rules of Procedure and Evidence

IRMCT Rules of Procedure and Evidence

ECCC

The Law on the Establishment of the Extraordinary Chambers (‘the ECCC Statute’)

ECCC Internal Rules

STL

Statute of the Special Tribunal for Lebanon (‘the STL Statute’)

STL Rules of Procedure and Evidence

KSCPO

The Law on Specialist Chambers and Specialist Prosecutor’s Office (‘the KSCPO

Statute’)

Rules of Procedure and Evidence before the Kosovo Specialist Chambers

SLIDE 4

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11. Each of the above Statutes, save for the STL Statute, have specific provisions setting

out the bases for individual criminal responsibility. For example:

ICTY Statute, Article 7.1 (continued by the IRMCT Statute, Article 1)

“A person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime referred to … shall be

individually responsible for the crime.”

ICTR Statute, Article 6.1 (continued by the IRMCT Statute, Article 1)

“A person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime referred to … shall be

individually responsible for the crime.”

KSCPO Statute, Article 16.1

“… a person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of such a crime shall be

individually responsible for the crime”

ECCC Statute, Article 29

“Any suspect who planned, instigated, ordered, aided and abetted, or committed

the crimes referred to … shall be individually responsible for the crime”

12. The similarity in the provisions for the ICTY/ICTR, the KSCPO and the ECCC will

immediately be obvious. There are effectively identical.

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13. Each refers to accessorial bases for liability as an aider and abettor, but in this

webinar we will focus, as the cases that we will look at shortly focussed, on the

words ‘commit’ or ‘committed’, and liability as a perpetrator, rather than an

accessory.

14. Only one of the articles set out in this slide refers to the joint commission of an

offence, and that is Article 25.3(a) of the ICC Statute.

Article 25.3(a), ICC Statute

In accordance with this Statute, a person shall be criminally responsible and liable for

punishment for a crime within the jurisdiction of the Court if that person commits

such a crime, whether as an individual, jointly with another or through another

person, regardless of whether that other person is criminally responsible”

.

15. The ICTY, of course, was up-and-running before the ICC, so in the absence of specific

provisions for the joint commission of an offence in its core text, the ICTY Appeals

Chamber in the case of Prosecutor v Tadic, ICTY, IT-94-A, 15 July 1999 controversially

looked to customary international law to fill what it perceived was a gap – the first

time that an international court had undertaken to set out the elements of criminal

liability for what it termed ‘joint criminal enterprise’.

SLIDE 5

16. The controversy lay not in the use of customary international law as a source.

17. Where a rule of customary international law can be identified it is accepted as binding.

Indeed, some core texts expressly refer to customary international law as a source of

law (for example, Article 3(2) of the KSCPO Statute).

18. What is looked for is “a general practice and acceptance of that practice” as law (see

the Draft Conclusions on Identification of Customary International law, International

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Law Commission 70 th Session 2018 at p.125). “The relevant practice must be general,

meaning that it must be sufficiently widespread and representative, as well as

consistent” (Draft Conclusions on Identification of Customary International Law,

International Law Commission 70 th Session 2018 at p.135).

19. A rule of customary international law is one which is created and sustained by

“constant and uniform” practice (the International Court of Justice held in the

Colombian-Peruvian asylum case, Judgment 20/11/1950, ICJ Reports 1950 p.266 at

p.270).

20. No, the controversy lay in what the ICTY Appeals Chamber identified as customary

international law, and the basis on which it claimed to identify the rule.

SLIDE 6

Tadic

21. Tadic was charged with crimes against humanity and war crimes. One of the charges

related to the killing of 5 men in the village of Jaskici. There was no evidence linking

him directly to the killing; he was not present in the village. All the prosecutor could

prove was that he was part of a group of armed men who were engaged in ethnically

cleansing the region and that he had previously taken part in his beating of men in a

neighbouring village. Tadic was found not guilty. On appeal by the Prosecutor, the ICTY

Appeals Chamber found Tadic guilty on the basis of what it called a “common criminal

purpose” and a “joint criminal enterprise”.

22. Examining Article 7(1) of the ICTY Statute, the Appeals Chamber began by stressing

that the foundation of criminal responsibility in international law, as much as in

national systems, was the principle of personal culpability. It continued that, looking

at the object and purpose of the ICTY Statute, it was clear that responsibility for

serious violations of international humanitarian law was not limited merely to those

who actually carry out the actus reus of the enumerated crimes. The Appeals Chamber

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observed that the very nature of many international crimes, committed most

commonly in wartime situations, are not the result of the criminal propensity of single

individuals but constitute manifestations of collective criminality: the crimes are often

carried out by groups of individuals acting in pursuance of a common criminal design.

Whoever contributes to the commission of crimes by the group, in execution of a

criminal purpose, may be held criminally liable, subject to conditions. The ICTY Statute,

it observed, did not specify what those conditions were – the actus reus and mens rea

of this category of collective criminality - but they could be discerned from customary

rules.

23. The Appeals Chamber then identified three categories of case, which have

subsequently become known as JCE I, II and III.

SLIDE 7

JCE I

24. The first category applies where all co-defendants, acting pursuant to a common

design, possess the same criminal intention: for instance, the formulation of a plan to

kill, where in effecting this common design, they nevertheless all possess the intent to

kill.

(i)

(ii)

The accused must voluntarily participate in one aspect of the common design;

and

The accused, even if not personally effecting the killing, must nevertheless

intend this result.

25. This is straightforward and non-controversial.

SLIDE 8

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JCE II

26. In essence only a variant of the first category, JCE II provides that a person will be

individually liable where (i) he actively participates in the enforcement of a system of

repression, as inferred from the position of authority and specific functions held; with

(ii) knowledge of the nature of the system; and (iii) the intent to further the common

concerted design to ill-treat inmates.

27. Like the basic form, this is also non-controversial, focussing as it does on the shared

or common intention of the participants.

28. So far, so good.

SLIDE 9

JCE III

29. This is where it gets spicy; and the thrust of the controversy will be familiar to us all in

this jurisdiction.

30. The third category of case involved “a common design to pursue one course of

conduct where one of the perpetrators commits an act which, while outside the

common design, was nevertheless a natural and foreseeable consequence of the

effecting of that common purpose”. An example of this, the Appeals Chamber said,

would be a common, shared intention on the part of a group to forcibly remove

members of one ethnicity from their town, village or region (to effect “ethnic

cleansing”) with the consequence that, in the course of doing so, one or more of the

victims is shot and killed. While murder may not have been explicitly acknowledged

to be part of the common design, it was nevertheless foreseeable that the forcible

removal of civilians at gunpoint might well result in the deaths of one or more of those

civilians.

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31. The mens rea requirements were said to be fulfilled where there is:

(i) The intention to take part in a joint criminal enterprise and to further –

individually and jointly – the criminal purposes of that enterprise; and

(ii)

The foreseeability of the possible commission by other members of the group

of offences that do not constitute the object of the common criminal purpose.

32. More than negligence was required. “What is required is a state of mind in which a

person, although he did not intend to bring about a certain result, was aware that the

actions of the group were most likely to lead to that result but nevertheless willingly

took that risk”.

33. Sounds familiar?

34. Well, the Appeals Chamber referred to the position (as it was understood then at

least) in England & Wales, as it did to other common law jurisdictions such as Canada,

the US, Australia and Zambia (paragraph 102), and to the civil law systems of France

and Italy as supportive of the propositions in JCE III. But they also noted that Germany

and the Netherlands restricted criminal responsibility for a crime outside the common

purpose or design to the individual perpetrator alone; and that as far as JCE III was

concerned:

“…national legislation and case law cannot be relied upon as a source of international

principles or rules… for this reliance to be permissible, it would be necessary to show

that most, if not all, countries adopt the same notion of common purpose. More

specifically, it would be necessary to show that, in any case, the major legal systems

of the world take the same approach to this notion. The above brief survey shows that

this is not the case.”

35. So what did the Appeals Chamber place reliance upon to identify the doctrine of JCE

in customary international law?

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36. They drew support from Article 25 of the Rome Treaty (the ICC Statute, not at that

stage in force), and similar wording in the International Convention for the

Suppression of Terrorist Bombing adopted by the UN General Assembly in 1997, for

the general proposition that common criminal purpose is an established mode of

liability in international law and distinct from aiding and abetting. But neither the

Rome Treaty, nor the Terrorist Convention, provide support for the specifics of the

more controversial category of JCE III.

37. The Appeals Chamber instead turned back to some post-World War II European cases.

Surprisingly given the rejection of national case law as a basis for JCE III, they were

not judgments of the International Military Tribunal (familiar to all as the Nuremburg

Tribunal) but they were two cases before British and US military courts and 6 in the

domestic Italian courts. In general, the cases are not reported in any great detail, and

as the ICTY Appeals Chamber admitted, the mens rea required for a member of the

group to be held responsible [for a crime outside the criminal plan] was inconsistently

spelled out. The two British and US cases illustrate this:

SLIDE 10

The Essen Lynching case - Trial of Erich Heyer and six others, British Military Court for

the Trial of War Criminals, Essen, 18th-19th and 21st-22nd December, 1945, UNWCC,

vol. I, p. 88).

38. Highlighted by the ICTY Appeals Chamber as being of particular importance, the case

of Essen Lynching involved the lynching of three British prisoners of war by a mob of

Germans on 13 December 1944. Two servicemen and five civilians were charged with

their killing. They included a German captain, Heyer, who said loudly that escorting

soldiers should not interfere if German civilians would molest the prisoners,

effectively encouraging the crowd to attack them, while also saying that they ought to

be shot or would be shot. According to the summary, the Prosecution submitted that

if the Court was not satisfied beyond reasonable doubt that he had incited the crowd

to lynch these airmen, the Captain was entitled to be acquitted, but if the court was

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satisfied that he did in fact say these people were to be shot, and did in fact incite the

crown to kill the airmen, then he was guilty. He was found guilty, as was a member of

the escort, Private Koenen who was present and stood by while the men were

murdered. Three civilians were also found guilty, one of whom admitted in evidence

hitting the airmen with his belt. Two civilians were acquitted. There was no Judge

Advocate, and consequently no summing up. The approach of the court to both the

facts and the law which they applied does not appear in the report, save that there

was uncertainty as to what exactly was the nature of the charge against these men.

The wording of the charge alleged that the accused “were concerned in the killing of

the three British airmen”. The Prosecutor said that for the purpose of this trial he

would invite the Court to take the view that this was a charge of murder and nothing

other than murder (presumably, referring to a requirement of intent to kill or, in the

alternative, cause really serious harm). The report states that the court did not accept

that proposition, stating that murder was the killing of a person under the King’s

peace, that the charge here was not murder, but that “as long as everyone realised

what was meant by the word ‘murder’ for the purposes of this trial,” there was no

difficulty. According to paragraph 208 of Tadic, the Prosecution submitted that the

court had to be satisfied that each accused was concerned in the killing “in

circumstances which the British law would have amounted to either murder or

manslaughter”.

39. From this scant information, it can be properly inferred – as the ICTY Appeals Chamber

inferred – that the court was sure that each of the guilty accused participated in the

killing in one form or other. Not much else is clear.

40. Whether the court required proof of an intention to kill, or whether the alternative

lesser intention to cause grievous bodily harm might suffice; indeed, whether it was

satisfied simply by participation in an unlawful act of violence which caused death

(unlawful act manslaughter) is not clear. If the court approached the matter as

murder, of course, a shared intention to cause really serious injury would have

sufficed, of which there appears to have been plenty of evidence. If the court

approached the matter on the basis that manslaughter was enough, then it was

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sufficient that each defendant participated in the unlawful act of violence which

caused death. It cannot be said with any conviction that Essen Lynching is anything

other than a JCE I case. The lynching was not outside the common criminal purpose.

SLIDE 11

Borkum Island – United States v Kurt Goebell et al.

41. Borkum Island also concerned the lynching of airmen, this time American airmen, by

German soldiers and civilians. The airmen had been forced down on the island of

Borkum, taken prisoner and then forced to march under military guard through the

streets. They were made to pass between members of the Reich’s Labour Corp, who

beat them with shovels, upon the order of an officer. They were then struck by

civilians. As they passed the mayor of Borkum he shouted at them, inciting the mob

to kill them like dogs. The Prosecutor put his case on the basis that all the participants

shared the same criminal intent, namely to commit murder. Again, no Judge Advocate

stated the law applied by the court or explained the verdicts. Some defendants were

convicted of both “participating in the killing of the airmen” and “participating in

assaults upon the airmen”; others convicted only of participating in the assaults. The

ICTY Appeals Chamber presumed that the distinction in verdicts was because some of

“the accused, whether by virtue of their status, role or conduct, were in a position to

have predicted that the assault would lead to the killing of their victims”. An

alternative explanation may simply have been that the court found that all

participated in the assaults, only some defendants, such as the mayor who incited the

mob to kill them, shared the intention to commit murder. Again, Borkum Island

provides no sound basis to find that customary international law attaches criminal

liability for offences committed by others outside the common design and based on

foresight alone.

SLIDE 12

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42. Nevertheless, JCE III (or ‘Just Convict Everyone’, as it has also been labelled – see Badar

(2006) 6 Intl Crim L Rev 293) quickly gained traction in the ICTY. It was reaffirmed by

the ICTY Trial and Appeal Chambers in a number of cases, including Prosecutor v

Brdanin, ICTY Trial Chamber, IT-99-36-T, 1 September 2004.

43. The ICTR Appeals Chamber followed suit in Prosecutor v Rwamakuba, ICTR-98-44-

AR72.4, 22 October 2004 and Prosecutor v Ntakirutimana ICTR-96-10-A, 13 December

2004, with the Chamber simply noting in the latter case:

“Given the fact that both the ICTY and the ICTR have mirror articles identifying the

modes of liability by which an individual can incur criminal responsibility, the Appeals

Chamber is satisfied that the jurisprudence of the ICTY should be applied to the

interpretation of Article 6(1) of the ICTR Statute”.

SLIDE 13

44. But JCE III’s place in international criminal law is far from settled.

45. It has been rejected by the ICC. The concept of co-perpetration in Article 25 of the ICC

Statute requires that the suspect must nevertheless ‘fulfil the subjective elements of

the crime with which he or she is charged, including any requisite dolus specialis

[specific intent] or ulterior intent for the type of crime involved (Prosecution v

Lubanga, ICC-01/04-01/06, 29 January 2007 at paragraph 349; see also Katanga &

Ngudjolo ICC-01/04-01/07-717, 30 September 2008 at para 527; Bemba, ICC-01/05-

01/13-1989, 19 October 2016 at para 62).

SLIDE 14

46. The Special Tribunal for Lebanon (the STL) has turned it down too:

“While the case law of the ICTY allows for convictions under JCE III for genocide and

persecution as a crime against humanity even though those crimes require special

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intent … the better approach under international criminal law is not to allow

convictions under JCE III for special intent crimes like terrorism. In other words, it

would be insufficient for a finding of guilt for an accused charged as a participant in a

JCE (directed, for instance, to the commission of robbery or murder) to have foreseen

the possibility that the crimes within the common purpose would eventually give rise

to a terrorist act by another participant in the criminal enterprise. He must have the

required special intent for terrorism; he must specifically intend to cause panic or to

coerce a national or international authority”

Interlocutory Decision of the STL, STL-11-01/, 16 February 2011 at paragraph 249

SLIDE 15

47. In Prosecutor v CHEA Leang & KHIEU Samphan, 002/19-09/2007-ECCC/SC, 23

November 2016, the Supreme Court of the ECCC also gave JCE III the thumbs down,

giving a judicial kicking to the judgment in Tadic, in the process:

“…the decisions upon which the ICTY Appeals Chamber relied in Tadic when finding

that JCE III was part of customary international law did not constitute a ‘sufficiently

firm basis’ for such a finding”, the Supreme Court held (para.791)

“…Too little was known about the Essen Lynching case and the Borkum Island case to

conclude that a notion amounting to JCE III was applied therein” (para.791)

48. The Italian cases referred to in Tadic were either ‘misplaced’ by the ICTY Appeals

Chamber (in that they too did not involve a crime falling outside the common plan);

or were inconsistent and highly context dependent; or as they involved ordinary

crimes under ordinary Italian law, adjudicated by Italian domestic courts were of

limited relevance (paragraphs 795-798).

49. The Supreme Court reviewed a number of other cases dating from the post-WWII

period relating to liability for participation in the implementation of a common

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purpose. The “vast majority”, the Court said, “does not lend any support to the

argument that accused may incur criminal responsibility for crimes that were not

encompassed by the common purpose” (para.799)

50. It concluded that “criminal liability for making a contribution to the implementation

of a common criminal purpose arose only with respect to crimes actually

encompassed by the common purpose” (para.810). JCE III, as notion of criminal

liability, did not exist under customary international law at the time of the charges,

1975 to 1979, the Court said.

51. Given that Tadic was the first international court to identify JCE III and that was wrong

to do so based on post WWII authorities, the most recent of which was in 1949, the

ECCC judgment can be taken as an outright rejection of JCE III (not merely limiting it

to the period pre 1980). After all, it cannot be said that the line of authorities in the

ICTY and ICTR based on Tadic should be taken as establishing customary international

law themselves, when that line was based upon a ‘wrong turn in the law’.

52. Is this sounding familiar, again?

SLIDE 16

53. Well, several attempts have been made to reverse JCE III before the ICTY, the ICTR and

their successor the IRMCT. Each have been unsuccessful.

54. In Dordevic, IT-05-87/1-A, 27 th January 2014, the ICTY Appeals Chamber was

confronted with the rejection by the ICC of JCE III, the criticisms of the Tadic analysis

of the post-WWII cases, and the earlier decision of the Pre-Trial Chamber of the ECCC

in CHEA Leang & KHIEU Samphan (which reached the same conclusion as the Supreme

Court later did). The ICTY Appeals Chamber was unimpressed. Stressing that the

related jurisprudence of other tribunals did not bind the ICTY, the Appeals Chamber

said that:

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“Dordevic has failed to show a reason why the Appeals Chamber should revisit its wellestablished

case law, based on numerous sources, that both civil and common law

jurisdictions recognize liability for taking part in a common criminal plan in relation to

crimes committed outside the common plan but are nevertheless foreseeable”.

55. Whilst the Appeals Chamber did “not doubt the persuasiveness of the ECCC Decision”,

it was not bound by it and it did not constitute a cogent reason for the Appeals

Chamber to depart from its own consistent jurisprudence.

56. A further attempt was launched in the final appeal heard by the ICTY Appeals Chamber

- Prosecutor v Prlic, IT-04-74-A, 29 November 2017. Armed now with the decision from

the Supreme Court of the ECCC, the appellants argued that JCE III was not part of

customary international law. Acknowledging that the ECCC had identified flaws in the

reasoning of the Tadic Appeals Chamber, the court nevertheless reminded itself that

it was the "settled jurisprudence" of the ICTY that JCE III, as a form of commission of

a crime, had been established in customary international law - and here comes a

clever nuance - "since at least 1992" (i.e. the year before the ICTY was created). Whilst

it was not bound by the findings of other tribunals and courts, it re-affirmed that it

would only depart from its own previous decisions in exceptional cases and where

there were cogent reasons to do so. In its last appeal before closing down, the ICTY

Appeals Chamber found that the appellants had failed to discharge that high burden

and that it would not end its existence by overturning 18 years of its own

jurisprudence, before it handed the baton over to the IRMCT.

57. Well, the IRMCT picked up the baton and ran with it. In Karadzic, MICT-13-55-A, 20

March 2019, the IRMCT Appeals Chamber was faced with a further assault on JCE III,

this time firmly based upon the case that of course has been in our thoughts

throughout, that is, Jogee [2016] UKSC 8. The appellant argued that the Appeals

Chamber should depart from the mens rea standard of "awareness of the possibility

that such crimes might be committed", given the recent reversal by the UK Supreme

Court of the analogous standard in our domestic law. Foresight, the UK Supreme Court

found, should be treated as evidence of intent and that, in truth, the English common

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law never recognised "common purpose doctrine" as the ICTY understood it. The ICTY

had failed to recognise the distinction between the proposition of foresight as a

sufficient legal requirement of mens rea and the correct analysis of foresight as

evidence of intent only. The IRMCT said that, in the interests of legal certainty, it would

follow the previous jurisprudence of the ICTY and ICTR and depart from them only for

cogent reasons in the interests of justice. On review of the judgment in Jogee, which

was not binding on the IRMCT, the Appeals Chamber did not find any cogent reason

for departing from its well-established jurisprudence. Jogee was not binding on the

IRMCT, and in the view of the Appeals Chamber, not directly on point in any event as

it sets out the basis for accessorial liability, which the IRMCT regards as a lessor form

of culpability, whereas JCE III is concerned with liability as a perpetrator. The shift in

the law in England & Wales did not warrant reconsideration and reversal of the

established appellate jurisprudence of the ICTY (paragraph 435). Although the Appeals

Chamber in Tadic referred to the position in the UK, as it understood it, and that

position turns out to have been wrong, it had found that JCE III was derived from

international sources, and not domestic law because there was no common approach

among major domestic jurisdictions. That was the position before the reversal in

England & Wales; which has only created further divergence, now amongst the

common law jurisdictions also. Again, the IRMCT Appeals Chamber held, the

appellants had failed to show cogent reasons warranting a departure from the

consistent jurisprudence of the ICTY on JCE III.

58. Strangely for a doctrine the source of which is said to be constant and uniform

practice, the very fact that JCE III is controversial and divisive is being used as a tool to

defend its continued existence, in the absence of a common rejection among all major

domestic jurisdictions of its approach. Moreover, there is something akin to a selffulfilling

prophecy in the ICTY/ICTR and IRMCT's repeated references to the fact that

it is established and settled doctrine within their own jurisprudence, as if that by itself

elevates the proposition to the status of customary international law "since 1992".

59. What then about the future of JCE III in international criminal law?

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SLIDE 17

60. The IRMCT continues the work of the ICTY and ICTR. Only yesterday, a fugitive from

the ICTR, Felicien Kabuga, indicted in 1997 on genocide charges, and arrested in

France earlier this month, appeared yesterday in a French court for the application to

be made for his transfer for trial at the IRMCT. In any future proceedings, we can

expect the IRMCT to follow its own jurisprudence on JCE III.

61. The ICC has taken its own course and turned away from JCE III, as has the STL and the

ECCC.

62. What about new international criminal courts, such as the Kosovo Specialist

Chambers, the KSCPO? Unbounded by the jurisprudence of others, and unburdened

with their own jurisprudence, they will have to choose afresh between these

divergent paths.

63. As far as the KSCPO is concerned, as we saw earlier article 16(1) of the KSCPO Statute,

on individual criminal responsibility, is in near identical terms to Article 7(1) of the ICTY

Statute and Article 6(1) of the ICTR Statute. It may be tempting for the KSCPO to just

adopt the perfunctory approach of the ICTR in Ntakirutimana and simply declare that,

as they share mirror provisions, it is satisfied that the jurisprudence of the ICTY should

be applied to the interpretation of Article 16(1) of its statute. Indeed, there is an

obvious historical association between the jurisdictions of the ICTY and the Kosovo

Specialist Chambers which may incline the KSCPO to look for particular guidance from

the jurisprudence of the ICTY, rather than other courts and tribunals.

64. But the criticisms of JCE III remain valid. The foundations of the doctrine, as set out in

Tadic, are shaky. Its fundamental claim to be part, not only of the jurisprudence of the

ICTY/ICTR, but of customary international law necessarily predating Tadic is weak. And

it suffers from the same principled criticism that the doctrine of parasitic accessory

liability was subjected to by the Supreme Court in Jogee: namely that extending

criminal liability to a secondary party on the basis of a lesser degree of culpability than

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the principal results in an 'over-extension' of the law and savours of constructive

crime.

65. With indictments now having been filed for review by the Pre-Trial Judge, Judge

Nicolas Guillou, the Kosovo Specialist Chambers may have to reach a view sooner

rather than later.

JONATHAN ELYSTAN REES QC

21st May 2020

19

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