On 20 June 2007, Trial Chamber II of the Special Court for Sierra Leone handed down the Court’s first judgment in the trial of the alleged leaders of the Armed Forces Revolution Council (AFRC), Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu. While the Trial Chamber found all three defendants guilty on eleven of the fourteen charges, it announced that “the Trial Chamber [would] not consider joint criminal enterprise as a mode of criminal responsibility” on the grounds that Prosecutor had “defectively pleaded” it. This decision could prove significant in other Special Court cases where Prosecutor has similarly pleaded joint criminal enterprise (JCE) and the Prosecution case relies heavily on JCE as a mode of criminal responsibility. A close analysis of the decision, however, reveals that while it creates a high hurdle to establish JCE as pleaded, it still preserves the possibility that the Prosecutor may overcome that hurdle with the right evidence.
“Joint criminal enterprise” is a mode of criminal responsibility or way that a court may find an individual responsible for a crime. In a JCE, an accused is held responsible not based on his personally committing the crime, but based on his participation in a common plan that leads to the commission of that crime. This mode of criminal responsibility was first articulated in the International Criminal Tribunal for the former Yugoslavia Appeals Chamber decision inProsecutor v. Dusko Tadic. [i] The ICTY Appeals Chamber articulated the mode’s elements, or what the Prosecutor must prove in order to convict the accused using that mode of responsibility: 1) “[a] plurality of persons; 2) the existence of a common plan, design or purpose that involves the commission of a crime provided for in the Statute; and 3) the participation of the accused in the common plan involving the perpetration of the crime provided for in the Statute.” [ii]
The Tadic Court also described three forms of JCE, named in the SCSL’s AFRC decision: basic, systemic and extended. In the basic form, all members of the common criminal enterprise, including the accused, intend to commit a given crime and all are responsible for forming and carrying out the plan to commit that crime. The systemic form refers to so-called “concentration camp” cases; under this form, an accused may be found guilty for participating in an institution where human rights abuses occur if he or she knew of abuses, willingly participated in the institution and implicitly or explicitly expressed the intent for the abuses to continue. Thus under this form of JCE, an administrator at a concentration camp may be held criminally responsible for acts of torture that occurred there, even if he or she did not personally commit acts of torture provided he knew about them and continued to work there. Finally the extended form of JCE holds an accused responsible for crimes committed by another member of the enterprise that the accused did not intend but that were a foreseeable consequence of common criminal plan in which he willingly participated. Note that for the extended form the Prosecutor need not show that the accused intended the crime with which he is charged; the Prosecutor must only show that the crime was as a foreseeable consequence of the common plan and that the accused willingly took part in that plan.
JCE has been subject to a number of criticisms. First, it was not explicitly stated as a mode of criminal responsibility in the statutes for either the ICTY or the SCSL. The Chamber in Tadic asserted that the ICTY statute implied JCE as a mode of criminal responsibility because Article 1 extended ICTY jurisdiction to “ all those ‘responsible for serious violations of international humanitarian law’ committed in the former Yugoslavia.” [iii] Reasoning that holding criminally liable “only the person who materially performs the criminal act would disregard the role of co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out the criminal act,” [iv] the Court concluded that the Statute implicitly allowed joint criminal enterprise as a mode of responsibility that already existed in customary international law. [v] Critics argue that this kind of “judicial creativity” overreaches. [vi] The Tadic decision has been further criticised on the grounds that the cases the Chamber cited to establish JCE was customary international law ““provide almost no support for the most controversial aspects of contemporary joint criminal enterprise doctrine.” [vii] In other words, JCE as articulated by the ICTY may not have been customary international law at all. Other critics argue that JCE effectively functions to find a defendant defendants guilty by association or becomes a kind of organization liability, where an individual is found criminally responsible for others’ action simply because he associated with them. [viii] Finally, the “extended” form has been criticised on the grounds that it does not require either a causal link between either the defendant’s action or his intention and the resulting crime. [ix]
In the AFRC judgment, however, Trial Chamber II does not criticise in general, but only as pleaded in this particular case. The Trial Chamber first asserts that a JCE must be “inherently criminal,” usually because it has the aim of committing a substantive crime under the statute, and cites a series of ICTY cases as support. Paragraphs 33 and 34 of the AFRC indictment charge that the AFRC accused formed a common plan with the RUF “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas.” As the Trial Chamber points out, however, such a goal does not constitute a crime under international law.” Since the indictment fails to plead the necessary element that the common plan exist for the purposes of committing a crime under the Statute, the Trial Chamber reasons, the indictment is defective.
The Trial Chamber then, however, expands on the ways that a Prosecutor may charge that a common plan was criminal when it agrees with the Prosecution’s assertion that “a JCE only needs to ‘involve’ the commission of the crime,” rather than be formed with the goal of committing a crime. The Trial Chamber clarifies, however, that if the Prosecutor charges that a plan “involved” crimes, then the “fundamental question” becomes “whether the agreement involved international crimes at the inception of JCE.” As stated the reasoning is circular: the JCE must have involved crimes from the inception of the JCE because before it involved crimes it was, by definition, not a JCE. Trial Chamber seems to mean that if the common plan “involved” crimes, presumably meaning that the commission of crimes constituted an agreed-upon action or was an inherent and inevitable result of the goal of the common plan, then the plan must have involved committing such crimes from the beginning of the agreement. This does not seem to logically follow because an initially lawful agreement may transform over time to “involve” crimes. In reasoning, the Trial Chamber may have anticipated its own further criticism of the Indictment: that it fails to specify the time period over which the alleged JCE existed. Since the Prosecutor has asserted that accused were charged with a JCE at “all times relevant to the indictment,” and the alleged JCE developed during the Indictment period, then the Prosecution must show the JCE was inherently criminal from its inception. Ultimately the Trial Chamber concludes that the indictment is defective in part because “[f]rom the evidence” presdented in the case the Prosecutor has not established the alleged JCE was criminal from its inception.
While the Trial Chamber presents the issue as a defective pleading, it can be reframed as an evidentiary problem. While the Trial Chamber asserts that the indictment was pleaded incorrectly because it pleaded charges in a way that that Prosecutor could not prove, one could instead present the problem as a lack of evidence to prove the charges in the Indictment. This distinction affects the judgment’s implications for other Special Court cases, particularly those of Charles Taylor and the RUF accused, which rely heavily on JCE as a mode of criminal responsibility. Since the cases are being argued and the evidence presented separately, the Prosecutor could theoretically produce new or alternative evidence that proves beyond a reasonable doubt that the common plan “involved” crimes at its inception. Thus while this case creates strict requirements for what the Prosecutor must prove beyond a reasonable doubt in those cases in order to use JCE as a mode of criminal responsibility, it has still left the door open for the Prosecutor to meet those requirements by presenting more or different evidence to establish that the agreement in question “involved” crimes from its inception.
If the Prosecutor were successful, however, it could create an odd situation in which, for example, the RUF defendants are convicted of having formed a JCE with the AFRC, but the AFRC defendants had not received any finding about whether it formed a JCE with the AFRC. Indeed, this outcome is more than just a possibility; while Charles Taylor will be tried by Trial Chamber II in the Hague, Trial Chamber I will resume trying the RUF accused in September. Since Trial Chamber I is not bound by Trial Chamber II’s decisions, and, indeed, had already concluded that JCE was not defectively pleaded in the AFRC case, it could draw its own, contradictory conclusions about the pleading of JCE. Ultimately, this decision may not be settled unless it is appealed the issue is appealed and decided as a matter of law by the Appeals Chamber of the SCSL.
[i] See Prosecutor v. Tadic, Judgement, ICTY Appeals Chamber, at paras. 185-229, Case No. IT-94-1-A (July 15, 1999).
[ii] Tadic Appeals Judgement, at para. 227.
[iii] Tadic Appeals Judgement, at paras. 189.
[iv] Tadic Appeals Judgement, at paras. 192.
[v] Tadic Appeals Judgement, at paras. 193 (the Chamber also cited the collective nature of many crimes against humanity and war crimes to support its position that JCE must be a recognized form of criminal responsibility).
[vi] See Antonio Cassese, “The Proper Limits of Individual Responsibility Under the Doctrine of Joint Criminal Enterprise,” 5 J. Int’l Crim. Just. 109, 114 (outlining such criticism before disputing it).
[vii] See Allison Marston Danner and Jenny S. Martinez, “Guilty by Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law,” 93 Cal. L. Rev. 75, 110.
[viii] See Prosecutor v. Multinovic, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber, at para. 24, Case No. IT-99-37-AR72 (May 21, 2003).
[ix] Cassese at 117.