Prosecuting multiple people under the doctrine of joint criminal enterprise

The doctrine of Joint Criminal Enterprise or JCE has been instrumental to securing a number of convictions for crimes of sexual assault and rape. Because sex crimes often take place through the participation of a plurality of persons, JCE has become an important framework for situating the personal culpability of co-perpetrators.[1] Under JCE, conduct that falls short of the commission of sexual assault may still result in individual criminal accountability.[2] Put simply, the test for individual criminal accountability on the basis of JCE is whether sex crimes was either intended or was a ‘foreseeable consequence’ of a set of actions or omissions within a joint criminal enterprise.

As an entry point into how JCE occurs in context, Chamber in Tadic provides a simple example.

[...] not all of them intended to kill but all intended to participate in the unlawful ill-treatment of the prisoners of war. Nevertheless they were all found guilty of murder, because they were all “concerned in the killing”. The inference seems therefore justified that the court assumed that the convicted persons who simply struck a blow or implicitly incited the murder could have foreseen that others would kill the prisoners; hence they too were found guilty of murder.[3]

Due to the contextual nature of this test, perpetrators including military and political leaders who were not physically present at the location of the crime could still be liable for the crimes of co-perpetrators of the joint criminal enterprise. This was a powerful finding because no longer could high-ranking officials plead that they themselves did not commit the crimes or that the incidents were an inevitable by-product of war beyond the control of senior leadership. Similarly, no longer could low-ranking officers escape responsibility by hiding behind the veil of superior orders. Additionally, for some of these crimes, the conviction and sentence for aiding and abetting was sometimes incommensurate to the seriousness of the accused’s contribution in the crime.

By broadening the lens of the focus from ‘commission’ to ‘common plan and purpose’, the participation of persons at the ‘fringes’ could be re-examined. In turn, how sex-based crimes occur, by whom and through what ‘systems’ could be re-understood. When examining sexual assault in war, one quickly grasps that they often occur in line with a common plan or purpose. In that plan, the person who commits the actus reus of the offence is one of many complicit.

A crime is often thought of as a direct commission of assault against another. The person who assaults is the criminal. What about persons who co-perpetrate? When can those persons be held similarly accountable? What framework can advocates use to chart the threshold required to link a ‘secondary conduct’ to a crime committed by a principal?

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

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

[2] International Criminal Law Services, ‘Module 9: Modes of Liability’ (International Criminal Law & Practice Training Materials: Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions) <http://wcjp.unicri.it/deliverables/docs/Module_9_Modes_of_liability.pdf> accessed on 10 April

[3] Prosecutor v. Dusko Tadic (Appeal Judgement), Case No. IT-94-1-A, (ICTY), 15 July 1999, para. 209