5 PB Webinar on JCE FINAL

Joint Enterprise in International Criminal Law:
An Overview
JONATHAN ELYSTAN REES QC
21 MAY 2020
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International Criminal Courts
§ International Criminal Tribunal for the Former Yugoslavia (ICTY)
§ International Criminal Tribunal for Rwanda (ICTR)
§ International Residual Mechanism for Criminal Tribunals (IRMCT)
§ International Criminal Court (ICC)
§ The Extraordinary Chambers in the Courts of Cambodia for the Prosecution of
Crimes during the period of the Democratic Kampuchea (ECCC)
§ The Specialist Tribunal for Lebanon (STL)
§ The Kosovo Specialist Chambers & Specialist Prosecutor’s Office (KSCPO)
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Core Texts
ICC
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
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Individual Criminal Responsibility
ICTY Statute, Article 7(1) & 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”
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”
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Customary International Law
§ ”A general practice and acceptance of that practice” – 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
§ “Constant and uniform” – Colombian-Peruvian asylum case, Judgment
20/11/1950, ICJ Reports 1950 p.266 at p.270
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Prosecutor v Tadic, IT-94-A, 15 July 1999
◦ The foundation of criminal responsibility in international law is the principle
of personal culpability
◦ The very nature of many international crimes are not the result of the
criminal propensity of single individuals but constitute manifestations of
collective criminality
◦ Whoever contributes to the commission of crimes by the group in execution
of a criminal purpose may be held criminally liable, subject to conditions.
◦ Those conditions could be discerned from customary rules
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JCE I
“Where all co-defendants, acting pursuant to a common design, possess
the same criminal intention.”
[for instance, the formulation of a plan among the co-perpetrators to kill,
where, in effecting this common design, they nevertheless all possess
the intent to kill]
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JCE II
Variant of JCE I – covers so-called “concentration camp” cases
A person will be individually liable where:
(i) he actively participates in the enforcement of a system of repression;
with
(ii) knowledge of the nature of the system; and
(iii) the intent to further the common concerted design to ill-treat
inmates
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JCE III
“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”
Mens rea:
(i) the intention to take part in a joint criminal enterprise and to further 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 –
paragraph 220
“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 the risk”
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ESSEN LYNCHING – Trial of Erich Heyer & others,
18 th -22 nd December 1945, UNWCC vol 1 p.88
No Judge Advocate
No Summing up
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”
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Borkum Island, United States v Kurt Goebell et al, 1
August 1947, Case No 12-489
The Mayor of Borkum shouted at the airmen, inciting the mob to kill
them like dogs
“Some were found guilty of murder, even where there was no evidence
that they had actually killed the prisoners. Presumably, this was on the
basis that 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”
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JCE III affirmed
‘Just Convict Everyone’, Badar (2006) 6 Intl Crim L Rev 293
Brdanin, IT-99-36-T, 1 September 2004
Rwamakuba, ICTR-98-44-AR72.4, 22 October 2004
Ntakirutimana, ICTR-96-10-A, 13 December 2004:
“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”
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Controversy re JCE III: ICC
Rejected by the ICC:
◦ Lubanga, ICC-01/04-01/06, 29 January 2007
◦ Katanga, ICC-01/04-01/07-717, 30 September 2008
◦ Bemba, ICC-01/05-01/13-1989, 19 October 2019
The concept of co-perpetration in Article 25 of the ICC Statute requires that
the suspect must ‘fulfil the subjective elements of the crime with which he or
she is charged, including any requisite dolus specialis or ulterior intent for the
type of crime involved’’
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Controversy re JCE III: STL
Interlocutory decision of the STL, STL-11-01/I, 16 February 2011:
“… 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 ...”
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Controversy re JCE III: ECCC
Prosecutor v CHEA Leang & KHIEU Samphan, Supreme Court Chamber of
the Extraordinary Chambers in the Courts of Cambodia (ECCC), 002/19-
09/2007-ECCC/SC 23 November 2016:
◦ “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”
◦ “…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”
◦ “Thus the Supreme Chamber finds that criminal liability based on making a
contribution to the implementation of a common criminal purpose was, at the
time relevant to the charges at hand, limited to crimes that were actually
encompassed by the common purpose” (paragraph 807)
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The end of JCE III?
ICTY, ICTR and IRMCT continue to uphold JCE III, e.g.:
Dordevic, IT-05-87/1-A, 27 th January 2014
◦ “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 that are nonetheless foreseeable”
◦ Prlic, IT-04-74-A, 29 November 2017
◦ ”Settled jurisprudence” of the ICTY that JC III had been established in customary international
law “since at least 1992”
◦ Karadzic, MICT-13-55-A, 20 March 2019
◦ The IRMCT Appeals Chamber did not find any cogent reason on a review of Jogee [2016] UKSC 8
to depart from the well-established jurisprudence of the ICTY and ICTR on JCE III
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Future….
Recent arrest of Felicien Kabuga, 16 May 2020 – indicted by ICTY in
1997 on 7 counts, including genocide. IRMCT can be expected to
continue following jurisprudence of ICTY/ICTR.
KSCPO?
◦ Indictments sent to Specialist Chambers for confirmation by Pre-Trial Judge in February and April
2020
◦ KSCPO not bound by jurisprudence of the ICTY/ICTR/IRMCT
◦ Art.16(1) of the KSCPO Statute in identical terms to Article 7(1) of the ICTY Statute
◦ Historical association between the ICTY and the KSCPO
◦ But criticisms of JCE III remain valid:
◦ Claim to be part of customary international law is weak
◦ “Savours of constructive crime”
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