Joint Criminal Enterprise

Concept and elements

Joint criminal enterprise (JCE) is a legal doctrine used in war crimes trials to prosecute members of a group, holding each member of an organised group individually responsible for collective crimes committed within the scope of a common plan or purpose. In a decision of 21 May 2003, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) held that JCE is a form of 'commission' under Article 7(1) of the ICTY Statute, a mode of liability distinct from conspiracy and not liability for mere participation or criminal conspiracy. Whereas conspiracy concerns the agreement itself, JCE requires perpetration of criminal acts in furtherance of the common purpose. Members need not belong to a formal military, political or administrative structure.

Contribution need not be necessary or substantial, but should at least be significant. A participant's role need not involve commission of a crime, may take the form of assistance in or contribution to the common purpose, and 'routine duties' do not exculpate. Physical presence at the crime is not required, and a JCE need not be previously arranged or formulated and may materialise extemporaneously; planning is not an element.

The doctrine has post-World War II antecedents. In the Dachau concentration camp case (US court) and the Belsen case (British military court), accused persons holding positions of authority in the Nazi camp hierarchy were found guilty for acting in pursuance of a common plan to kill or mistreat prisoners even if they had not personally committed the acts. The Essen lynching case (British military court, December 1945) bears the closest link to the doctrine, with 7 of 10 considered involved convicted.

Three categories

ICTY jurisprudence identifies three categories.

• JCE I (basic form): all members share the same criminal intent, for example a common plan to kill.
• JCE II (systemic form): knowing participation in a system of organised ill treatment, typically by camp guards, administrators or even cooks.
• JCE III (extended form): a crime outside the common purpose that was nonetheless a natural and foreseeable consequence of the group's actions and whose risk the members voluntarily assumed. The crime categories of JCE I and JCE III need not match (ICTY Appeals Chamber, Popovic, 30 January 2015), and JCE III liability requires that the accused foresaw the crime and voluntarily assumed the risk; merely creating the conditions for a crime is not enough (Martić Appeal Judgement, 8 October 2008).

Formation and spread

The first reference to joint criminal enterprise and its constituent elements was provided in the ICTY's Tadić case in 1999. The Trial Chamber held on the basis of the doctrine, which was not expressly set out in Article 7(1), that the acts of those participating in a crime with a common purpose also amount to 'commission' under the Statute; the Appeals Chamber's decision of 21 May 2003 then settled the definition. The ICTY subsequently applied the doctrine to prosecute political and military leaders for mass war crimes, including genocide, committed during the Yugoslav Wars from 1991 to 1999. The prosecutor indicted Slobodan Milošević on three separate indictments treated as one transaction; Milošević died during trial but was found part of a JCE in the verdicts against Milan Martić and Milan Babić. Ante Gotovina was acquitted on appeal of the JCE participation charge among others. The doctrine has also been used at the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, while the International Criminal Court uses the related but different doctrine of co-perpetration.

Application in Cambodia

At the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Trial Chamber in Case 002/01 found Khieu Samphan to be a member of a joint criminal enterprise sharing a common purpose with the leadership of the Communist Party of Kampuchea. The common purpose was to 'implement rapid socialist revolution through a "great leap forward" and defend the Party against internal and external enemies, by whatever means', and the Chamber held it was established at the latest by June 1974. In Case 002/02 he was found to have been involved in a plan to rapidly transform the population into a homogeneous Khmer society of workers and peasants.

In Case 002/01 the Trial Chamber sentenced him to life imprisonment on 7 August 2014, affirmed by the Supreme Court Chamber on 23 November 2016. In Case 002/02 he was convicted and sentenced to life on 16 November 2018, and on 22 September 2022 the Supreme Court Chamber upheld the life sentence, identifying him as one participant in a joint criminal enterprise with the common purpose of implementing a rapid socialist revolution in Cambodia. That purpose was characterised by the 'targeting of specific groups': the Cham, Buddhists, former Khmer Republic officials and the Vietnamese. The full judgement was published on 23 December 2022, closing Case 002/02.

The convicting instance and the group concerned must be distinguished. At first instance in 2018 Khieu Samphan was convicted of genocide against the Vietnamese, while he was acquitted of involvement in the killing of the Cham; genocide against the Cham was found against Nuon Chea. Nuon Chea died in 2019 before his appeal against his Cham and Vietnamese genocide convictions was heard, and the Supreme Court Chamber held that this did not require setting aside the convictions, the Trial Chamber's 'complete record' remaining valid. Scholarly assessment understands the ECCC as having thereby legally recognised genocide against two minority groups, the Cham and the Vietnamese.

Controversy

JCE is a controversial doctrine. Powles (Journal of International Criminal Justice, 2004) argued the Appeals Chamber had to declare JCE because there was no specific mention of the doctrine in the tribunal statutes, and that criminal law, especially international criminal law, requires clear and certain definitions of the bases of liability so that the parties, especially the defence, can prepare and conduct the case. Critics argue that JCE lowers the evidential bar in favour of the prosecution and can lead to excessive litigation and punishment, contrary to the spirit of the Blackstone formulation. Supporters argue it is a device that properly holds to account those who contributed to or instigated a crime.