Examples of prosecuting rape and sexual violence under joint criminal enterprise

Rape and sexual violence in war often involves a number of co-perpetrators, each having a separate or overlapping role in the commission or facilitation of the crimes. From the malicious nature in which crimes are committed to their systemic and frequent occurrences, it is clear that many incidents occur with the knowledge of and incitement by high ranking officials. JCE encompasses an inclusive and expanded approach to liability. Under JCE, each co-perpetrator who participates in a common criminal plan/ joint criminal enterprise with intent can be prosecuted.[8] Moreover, liability extends beyond the original common criminal plan. If further sexual violence is committed, and if they are deemed to be a foreseeable consequence of the original common criminal plan, or as ‘subsequently evolved crimes that adhere to the original common purpose’ then the co-perpetrators may also be found liable for them under JCE.

When the accused, or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case:

(i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and

(ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.[9]

Each act of participation should incur a commensurate responsibility. Lawyers should ensure that prosecution strategies address the commission of these crimes at each level of responsibility. They can match evidence gathered (testimonies, exhibits and documentary material) with one or more modes of liability under JCE. Further charges can be included at a later stage in the proceedings if they surface. It is not necessary for all charges to be read to the accused at the outset if it can be proven these further charges were a result of evidence that could not be discovered earlier.

[1] Prosecutor v. Akayesu, (Trial Chamber), Case No. ICTR-96-4, (ICTR), 2 September 1998, Para 451

[2] Prosecutor v. Kajelijeli, (Trial Chamber), Case No. ICTR-98-44A, (ICTR), 1 December 2003, Para 681

[3] Kajelikeli (n. 2) para 682

[4] Eboe-Osuji Chile, ‘Rape and Superior Responsibility: International Criminal Law in Need of Adjustment’, (Guest Lecture Series of the Office of the Prosecutor, The Hague 20 June 2005) <http://www.icccpi.int/iccdocs/asp_docs/library/organs/otp/050620_Chile_presentation.pdf> accessed on 8 April 2013

[5] Eboe-Osuji Chile (n 4) 12

[6] Patricia V. Sellers, ‘The Prosecution of Sexual Violence in Conflict: The Importance of Human Rights as Means of Interpretation’ (Office of the High Commissioner of Human Rights 14, 2007) 28

<http://www2.ohchr.org/english/issues/women/docs/Paper_Prosecution_of_Sexual_Violence.pdf> accessed on 8 April 2013.

[7] Binaifer Nowrojee, ‘Your Justice is Too Slow: Will the ICTR Fail Rwanda’s Rape Victims?’ (United Nations Research Institute for Social Development, Occasional Paper No. 10, 2005) 10 <http://www.unrisd.org/80256B3C005BCCF9/%28httpPublications%29/56FE32D5C0F6DCE9C125710F0045D89F> accessed April 7, 2013

[8] Patricia V. Sellers (n 6) 14

[9] Prosecutor v. Brdanin, (Appeals Chamber), Case No. IT-99-36, (ICTY), 3 April 2007 para. 411