Joint Enterprise in International Criminal Law: An Overview
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.
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
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.
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) –
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
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
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:
The Rome Statute of the International Criminal Court (‘the ICC Statute’)
ICC Rules of Procedure and Evidence
Statute of the International Criminal Tribunal for the Former Yugoslavia (‘the ICTY
Statute of the International Criminal Tribunal for Rwanda (‘the ICTR Statute’)
Statute of the International Residual Mechanism for Criminal Tribunals (‘the IRMCT
ICTY Rules of Procedure and Evidence
ICTR Rules of Procedure and Evidence
IRMCT Rules of Procedure and Evidence
The Law on the Establishment of the Extraordinary Chambers (‘the ECCC Statute’)
ECCC Internal Rules
Statute of the Special Tribunal for Lebanon (‘the STL Statute’)
STL Rules of Procedure and Evidence
The Law on Specialist Chambers and Specialist Prosecutor’s Office (‘the KSCPO
Rules of Procedure and Evidence before the Kosovo Specialist Chambers
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.
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
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’.
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
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
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.
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
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
23. The Appeals Chamber then identified three categories of case, which have
subsequently become known as JCE I, II and III.
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
The accused must voluntarily participate in one aspect of the common design;
The accused, even if not personally effecting the killing, must nevertheless
intend this result.
25. This is straightforward and non-controversial.
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.
29. This is where it gets spicy; and the thrust of the controversy will be familiar to us all in
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
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
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
“…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?
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:
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
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
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
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.
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
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”.
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).
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
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
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
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?
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
“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  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
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?
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
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
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
the principal results in an 'over-extension' of the law and savours of constructive
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