Instead of recoiling under protracted criticism,Footnote 1 the concept of joint criminal enterprise (JCE) has gained significant currency in the jurisprudence of the ad hoc criminal tribunals.Footnote 2 Thanks to the broad interpretation afforded to it by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), what was designed to fill the gap instituted by the burdensome evidentiary requirements of command responsibility and the high threshold of contribution required under the law of complicity has convincingly become the overriding mode of individual criminal responsibility used in the indictments issued by the Office of the Prosecutor.Footnote 3 Contextually, what was intended as a vehicle to assign criminal liability for crimes of mob violence has ultimately expanded to capture multifarious criminal conduct of high-ranking political and military individuals dispersed across vast geographical regions and temporal frameworks.Footnote 4
The Appeals Chamber in Tadić Footnote 5 formulated the three objective elements common to all categories of JCE in the following terms: (i) a plurality of persons not necessarily organized in a military, political, or administrative structure; (ii) the existence of a common criminal plan which amounts to or involves commission of crimes; and (iii) some form of participation dispensed by the accused towards realization of that common criminal plan.Footnote 6 The Appeals Chamber then discerned three sets of subjective elements that give rise to three distinct categories of the theory. The subjective element of the basic form, or JCE (I), comprises the intention of the accused to bring about the commission of a certain crime espoused by the common criminal plan.Footnote 7 JCE (II), applicable to concentration camp cases, requires proof of personal knowledge by the accused as to the nature of the system of ill-treatment, and his intent to further its design.Footnote 8 JCE (III) concerns liability for crimes of excess carried out by members of the JCE other than the accused, and requires proof that there was intention on the part of the accused to participate in the JCE and further its criminal purpose. Liability for crimes of excess arises only if, under the circumstances of the case, their commission by other JCE members was natural and foreseeable to the accused, and that he willingly took the risk.Footnote 9
Without prejudice to the vexing flaws inherent in Appeals Chamber's qualification of principal liability for enterprise crimes as a customary norm of international law,Footnote 10 the fact remains that subsequent jurisprudence of the ad hoc tribunals has viewed Tadić as the foundational articulation of the theory.Footnote 11 With this backdrop, the Appeals Chamber in Brđanin and Krajišnik found that an accused may also incur criminal liability pursuant to the theory for crimes of a common criminal plan as well as crimes of excess carried out by the so-called low-level non-JCE principals who are used as ‘tools’ or otherwise ‘instrumentalized’ to that effect by JCE members other than the accused.Footnote 12 Interestingly, the Appeals Chamber declined to specify which mode of individual criminal responsibility under Article 7(1) of the StatuteFootnote 13 would equate the JCE convictions entered on such basis.Footnote 14
This paper argues that if and when the Appeals Chamber decides to clarify formally its perplexing findings, a fundamental and irreconcilable departure not only from Tadić but also from the basic principles of criminal liability will be inevitable. At the onset, it is useful to provide the reader with the structure of the argument and a succinct summary of its crucial findings. The first part of the main text is dedicated to discerning the model of culpability intrinsic to Article 7(1). To this end, first the development of the law of individual criminal responsibility is mapped out. This is followed by elaboration of particular modes of liability and their constitutive elements. The findings here are then used to underscore the fact that since Nuremberg, the international law of individual criminal responsibility has moved away from its crude and unitary approach to criminality and instead has conformed to the relative participation model. Under the latter model, the liability of accomplices to commission of international crimes is dependent on or derivative of the liability of principal perpetrators. The second part of the article reviews the jurisprudence of the ad hoc tribunals and concludes that, by and large, JCE has been construed as a theory by means of which an accused is held liable for having perpetrated one or more offences. After providing the necessary groundwork, the final and greater part of the contribution explores the normative and theoretical problems that flood the Brđanin Appeals Chamber's conception of JCE liability. If the traditional understanding of Tadić JCE is upheld, then holding the accused liable for conduct of non-JCE perpetrators unduly inflates the intensity of the criminal contribution disbursed by the accused. Divergence from Tadić JCE – that is, the decoupling of the theory from commission and construing it as an expression of complicity – would entail no less serious shortcomings. It would disregard the derivative nature of complicity and, more importantly, contradict the existing JCE jurisprudence of the ad hoc tribunals.
1. Article 7(1) ICTY Statute: a relative model of participation
Whereas JCE assigns criminal liability for criminal conduct dispensed by a plurality pursuant to a certain plan or objective, in isolation it fails to reveal whether the accused is convicted as a principal or an accomplice. The inquiry into the principal/accomplice nature of JCE liability, however, hinges on the finding that the general scope of Article 7(1) encompasses the so-called relative participation model as opposed to the unitary perpetration model.
Under the former model, causation is considered as sine qua non of liability only in cases of (solitary and joint) direct and indirect commission. However, in cases of criminal contribution falling short of commission, the accused's liability is derived from the unlawful conduct of the principal. As such, an accomplice is not punished for having caused the actions of the principal, or because the acts of the principal are effectively his.Footnote 15 Instead, the accused is liable and punished only for his own acts – that is, his complicitous conduct which contributed towards perpetration of the crime charged. Given that the accused's liability is primarily dependent on the success of his own contribution, no proof is required that the crime would not have occurred had it not been for such contribution.
The latter model, on the other hand, considers an individual to be a principal provided there is proof of a considerable causality nexus, both physical and psychological, between him and commission of the crime charged. Departing from the notions of individual autonomy and volitionality of human action, it views the conduct of one individual as being capable of causing another individual to act or omit in a certain manner. The unitary model therefore treats causation as sine qua non of criminal liability in all cases. The doctrine of causation in turn recognizes no gradation, in that something is either caused by another's acts or omissions or it is not. Going beyond a certain threshold, the exact extent of purposefulness of the contribution dispensed by the accused becomes irrelevant. He is presumed to have caused a set of acts or omissions carried out by another as if he physically acted or omitted in that manner and personally brought about its end result. The discrepancy between the potency of the acts of the accused and those of the primary principal are instead factors that are considered during the sentencing stage of criminal proceedings. In the context of international criminal law, the application of the unitary perpetration model is best evident in the cases decided by the Italian Court of Cassation in the direct aftermath of the Second World War and untenably relied on by the Tadić Appeals Chamber as support for the customary basis of JCE (III).Footnote 16 In each of these cases, the existence of a nexus of material causality, direct or indirect, between the accused and the excessive crimes perpetrated by others was viewed as sufficient for his conviction as principal to commission of those crimes.
Thus from the characteristics of the two models it follows that confirmation of relativity in Article 7(1) depends on two elements: (i) the existence of formal and material distinctions between planning, instigating, ordering, committing, and otherwise aiding and abetting a crime; and (ii) alterations caused by such distinctions to the extent of culpability incurred by the accused during the imputation phase as opposed to the sentencing stage of criminal proceedings.
1.1. From Nuremberg to Rome and not back again
The terse wording employed in Article 7(1) ICTY Statute offers no substantial clues as to normative hierarchy or relational arrangements of the liability modes stipulated therein. Article 7(1) provides that
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
Seen in the historical context, this conspicuous indeterminacy is neither a novel occurrence nor a drafting oversight. In fact, the charters of the International Military Tribunals (IMTs)Footnote 17 introduced certain liability modes into the very definition of punishable offencesFootnote 18 and certain others after the definition of crimes against humanity.Footnote 19 As the jurisprudence of the IMTs suggests, subsequently equal waves of culpability were extended to all those who had lent material or legal support to formulation, execution, or conspiracy to commit offences that fell under the jurisdiction of the tribunals.Footnote 20 Article II(2) of Control Council Law No. 10 put some flesh on the bones of individual criminal liability by providing for a number of descriptive and distinct categories of criminal participation. Individuals were characterized as principals, accessories or those who ordered and abetted, those who consented to carry out parts of the crime, and finally those who were connected with plans to commit crimes.Footnote 21 Peculiarly, however, this relativization was introduced in order to be excluded as the underlying and determinative approach to individual criminal responsibility. Under the terms of Article II(2), an individual whose criminal interference satisfied one of the described liability modes was ‘deemed to have committed’ the crime charged. As expected, in cases decided under Control Council Law No. 10, attention was seldom paid to delimiting and articulating the precise mode of liability by means of which the accused had been found guilty of the offence charged. In sum, in international criminal law of the era immediately succeeding the Second World War, a rather confused unitary perpetration model, according to which ‘any support or promotion of the crime was to be considered criminal participation’, seems to have prevailed.Footnote 22
The formulation by the International Law Commission (ILC) of the Nuremberg Principles largely followed the approach adopted by the IMT Charters.Footnote 23 According to Principle VI(a) of the Nuremberg Principles, ‘planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances’, as well as ‘participation in a common plan or conspiracy’ for the accomplishment of such acts, are punishable as crimes under international law. Furthermore, under Principle VII, ‘complicity in the commission of a crime against peace, a war crime, or a crime against humanity’ constitutes an offence under international law. A more differential approach to criminal liability, although confined to the particular crime of genocide, appeared in the Genocide Convention.Footnote 24 Article III of the Convention considers commission, conspiracy to commit, direct and public incitement to commit, attempt to commit, and complicity in genocide as punishable offences under international law.Footnote 25 Seen in this historical context, while failing to provide appropriate systematizing cues, the wording employed by Article 7(1) and the separation of modes of liability from the definition of substantive offences in the StatuteFootnote 26 may even be characterized as a significant contribution to the rudimentary regime of criminal liability that preceded it.
It was not until the adoption of the Rome Statute that individual criminal responsibility received appropriate attention.Footnote 27 Article 25 therein enumerates and classifies four distinct categories of criminal participation that are relevant for the discussion at hand.Footnote 28 Unfortunately, however, in spite of that provision's comprehensive and systemic nature,Footnote 29 inconclusiveness as to the customary nature of the whole of the Rome StatuteFootnote 30 and the related inability to create rights and obligations for third partiesFootnote 31 render structural comparison of little value. In this light, the jurisprudence of the ad hoc tribunals becomes the primary platform for identifying the participation framework provided for in Article 7(1) ICTY Statute.
1.2. Modes of criminal liability under Article 7(1): constitutive elements
Commission is the strongest form of criminal participation, and may be broken down into three sub-categories. Direct commission refers to the simplest form of perpetration, where an individual solitarily satisfies the objective and subjective statutory requirements of an offence.Footnote 32 However, it cannot be excluded that direct commission could also capture cases where two or more individuals jointly satisfy the statutory requirements of a crime. In joint direct commission, all participants are primary principals, provided there is proof that each one of them carried out one or more of the crime's objective elements and that they together succeeded in its perpetration. The notion of indirect commission captures criminal liability in cases where an individual uses or otherwise instrumentalizes another into commission of a crime. The former individual is a secondary principal while the latter, by carrying out the statutory requirements of the offence, qualifies as a primary principal. Indirect commission presupposes a high degree of authority and control exerted by the secondary principal over the primary principal. It is pointed out that within the framework of the ad hoc tribunals, indirect commission has been overshadowed by direct commission and joint commission.Footnote 33 Joint commission has developed into two distinct theories, namely JCE and co-perpetration through control. The former has been adopted by the ad hoc tribunals. The latter has been endorsed by the Pre-Trial Chamber of the International Criminal Court (ICC) and will be discussed in more detail when appropriate.
Moving away from commission under Article 7(1), the notion of complicity finds expression in the following specific modes of liability: planning, instigating, ordering, and aiding and abetting. According to domestic principles of the law of complicity, a principal to an offence is one who satisfies the entire statutory requirements of that crime.Footnote 34 An accomplice or accessory is always complicitous in the unlawful acts or omissions of the principal and need not share his requisite mens rea.Footnote 35 As such, the former's liability is always derivative of that of the latter,Footnote 36 in the sense that ‘if no crime is committed there is no criminality from which another's complicity can be derived’.Footnote 37 The ad hoc tribunals, while remaining true to these general principles, have described and further elaborated the specific objective and subjective requirements for liability pursuant to planning, instigating, ordering, and aiding and abetting the commission of international offences.
Planning represents the least employed and the most discrete mode of liability. It consists of ‘devising, agreeing upon with others, preparing, and arranging’ criminal conduct constituting one or more statutory crimes.Footnote 38 Proof is required that such planning was ‘a factor substantially contributing’ to the commission of its envisaged crime.Footnote 39 While planning is similar to complicity in civil law or conspiracy in common law, it differs from those notions due to its ability to capture the liability of one individual as well as several individuals who design the commission of a crime ‘at both preparatory and execution phases’.Footnote 40 Unlike conspiracy, planning does not require the existence of an agreement and must be followed by consummation of the planned crime.Footnote 41 As for the subjective element, there ought to be proof that the planner intended the crime in question to be carried out during the planning phase as well as the execution phase.Footnote 42
Ordering, although somewhat similar to the notion of command responsibility which concerns liability for omission,Footnote 43 is applicable to situations where a de facto or de jure superior orders (an affirmative and direct act) his subordinate to commit an offence.Footnote 44 The superior–subordinate hierarchy may be embedded in military or civilian structures and does not require formal recognition as long as it is demonstrated that the superior had the required authority to order.Footnote 45 Accordingly, when B orders C to commit a statutory offence, B is indeed exploiting his relationship with C which is premised on a general obligation of obedience.Footnote 46 As for the subjective element, proof is required that the accused was aware of the substantial likelihood that the crime in question would be the consequence of his order, and intended the crime encompassed in his order to be committed by his subordinate.Footnote 47 Although ordering appears to be very close to indirect commission, its express mention in Article 7(1) ICTY Statute as well as in Article 25(3)(b) Rome Statute posits that ordering is in fact a distinct mode of criminal liability under international law.Footnote 48 It is nevertheless strongly implied that ordering an offence entails more participatory purposefulness and therefore more culpability than merely aiding and abetting the commission of that same offence.
Instigation, or soliciting or inducing as it is labelled under Article 25(3)(b) of the Rome Statute, establishes the criminal liability of an individual who, through his acts or omissions, explicitly or implicitly prompts or provokes others to commit crimes.Footnote 49 Its objective element requires proof as to the existence of a causal link between the instigating act or omission on the one hand, and the unlawful conduct of the principal on the other. Instigating acts or omissions ought to contribute substantially to perpetration of the crime,Footnote 50 although it is not necessary to demonstrate that the crime would not have occurred had it not been for such instigation.Footnote 51 Instigation must be direct, and followed up by consummation of the instigated crime.Footnote 52 As for the subjective element, proof is required that the instigator intended to provoke the commission of the crime or had knowledge or awareness as to the substantial likelihood that its commission would be a probable consequence of his acts or omissions.Footnote 53
Aiding and abetting is the last mode of liability mentioned in Article 7(1). Its objective core consists of acts ‘specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime’ which produce a substantial effect on its perpetration.Footnote 54 The objective element of aiding and abetting may be carried out by the aider and abetter in geographical and temporal separation from the perpetrated crime.Footnote 55 As for the subjective requirement, mere knowledge on the part of the aider and abetter that his acts would assist the principal in perpetrating one or more statutory offences suffices.Footnote 56 An aider and abetter need not share the requisite intent of the principal,Footnote 57 and the principal need not have knowledge of the aider and abetter's contribution towards consummation of the crime.Footnote 58
Having described the modes of liability provided for under Article 7(1), it becomes clear that liability of the principal perpetrators is the basis on which the liability of all other individuals who are strongly associated with perpetration of international crimes is constructed. The present author views identification of this principal–dependent attribute inherent in modes of liability other than commission as sufficient proof that Article 7(1) has assumed the relative participation model of culpability. The practice of the ad hoc tribunals confirms this relational arrangement, in that where an individual's criminal contribution to perpetration of a given offence is captured by two distinct modes of liability, conviction is entered under the more specific mode.Footnote 59 As for the correlation between the purposefulness of criminal contribution and the punishment meted out, the Appeals Chamber has held that criminal liability pursuant to aiding and abetting warrants a lower sentence than co-perpetration.Footnote 60 However, this particular impact must not be exaggerated, since neither the ICTY Statute nor the Rules of Procedure and EvidenceFootnote 61 refers to gravity of participation in commission of crimes as a factor to be considered during sentencing.Footnote 62 But neither should the formal absence of such impact be construed as indicia that the relative participation model is divorced from Article 7(1). Reference to equal stigmatization and punishment assigned to the modes of individual criminal responsibility under Article 7(1) as attestation of the unitary nature of that provision is therefore beside the point.Footnote 63 In a number of national jurisdictions, the principal–accomplice dichotomy no longer has bearing on questions of punishment and guilt. The removal of this influence, however, has not attenuated the notion of human autonomy and recognition of the volitional character of human acts and omissions in other aspects of criminal proceedings within these systems.Footnote 64 For example, the United States Code provides that ‘whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal’.Footnote 65 In the United States Code, the words ‘is also a principal and punishable as such’ were substituted by ‘punishable as a principal’ in order to emphasize that the notion of complicity was by no means synonymous with commission.Footnote 66 Section 2.06 of the Model Penal Code follows the same approach and characterizes complicity as another way of ‘being guilty of an offence’ without completely grafting it within the realms of perpetration.Footnote 67 French and English criminal laws also reward an accomplice to an offence with punishment that is equal to that obtained by its principal.Footnote 68 They nevertheless maintain the derivativeness of complicity and the autonomy of liability for perpetration. That ‘there is neither a criminal act nor accessorial liability without a primary perpetrator’ is a proposition that is continuously upheld in these system, albeit implicitly.Footnote 69 Next to this doctrinal import, maintaining the derivativeness of complicity has had practical underpinnings. Within national contexts, a number of offences may only be carried out by class-specific perpetrators. Insisting on the derivative nature of complicity allows for holding individuals criminally liable where they, not qualifying for the statutory definition of perpetrators, cannot be characterized as principals to such offences.Footnote 70
In the light of the above, it is rather regrettable that while a number of authors have had recourse to the jurisprudence of the ad hoc tribunals in order to define and delimit the various forms of criminal participation provided for under Article 25 Rome Statute, they have nevertheless viewed Article 7(1) as a continuation of IMTs’ unitary approach to culpability.Footnote 71 A second group of authors within the same camp has further broadened this view. These authors cast doubt on or simply deny the fact that even Article 25 Rome Statute constitutes a differential approach to individual criminal responsibility.Footnote 72 These views seem even more unwarranted in the light of the very judicial discourse within the ad hoc tribunals concerned with delimiting the principal–accomplice nature of JCE liability (section 2, infra), and the ICC Pre-Trial Chamber's finding that Article 25(3)(a) distinguishes between principals and accessories to crimes committed by a plurality of individuals (section 3.6, infra).Footnote 73
2. JCE as an expression of committing, instigating, ordering, or otherwise aiding and abetting
Unfortunate and misleading use of terminology in Tadić at the onset shrouded the precise normative nature of JCE liability in mystery. Contradictory statements such as ‘commission of one of the crimes envisaged in . . . the Statute might also occur through participation in the realisation of a common design or purpose’,Footnote 74 and ‘the notion of common design as a form of accomplice liability is firmly established in customary international law,Footnote 75 effectively neutralized the Tadić Appeals Chamber's formulation of features that distinguished participation in JCE from aiding and abetting.Footnote 76 This ambiguity resulted in a very limited development of trial chamber jurisprudence and academic opinion, which viewed the theory as an expression of accomplice liability, particularly the words ‘otherwise aided and abetted in planning, preparation or execution’ in Article 7(1).Footnote 77 The controversy came to end, at least provisionally, when the Appeals Chamber expressly confirmed the prosecution's classification of participation in the JCE as a form of commission under Article 7(1) of the Statute.Footnote 78 Subsequent Appeals Chamber case law and academic literature adhered to this classification and effectively construed JCE as a theory of principal liability.Footnote 79 It was not until Brđanin that the Appeals Chamber began discreetly to reverse course. The first indications of this reversal were triggered by an interlocutory appeal. In that instance, the Appeals Chamber was seized of the prosecution's submission claiming the inappropriateness of the Trial Chamber's categorization of liability pursuant to JCE (III) as being incompatible with the specific intent requirement of genocide. The Appeals Chamber concurred with the prosecution's submissions and found that
7. As a mode of liability, the third category of joint criminal enterprise is no different from other forms of criminal liability which do not require proof of intent to commit a crime on the part of an accused before criminal liability can attach. Aiding and abetting, which requires knowledge on the part of the accused and substantial contribution with that knowledge, is but one example. Command responsibility liability, which requires the Prosecution to establish that a Commander knew or had reason to know of the criminality of subordinates, is another.
8. This is the approach that the Appeals Chamber has taken with respect to aiding and abetting the crime of persecution. An accused will be held criminally responsible as an aider and abetter of the crime of persecution where, the accused is aware of the criminal act, and that the criminal act was committed with discriminatory intent on the part of the principal perpetrator, and that with that knowledge the accused made a substantial contribution to the commission of that crime by the principal perpetrator.Footnote 80
Acknowledging that the intent requirement in JCE (III) resonates with the knowledge requirement of liability pursuant to aiding and abetting and superior responsibility in the above passages ran parallel with an obvious ambiguity concerning the nature of JCE (III) liability. Statements such as ‘criminal liability can attach to an accused’ and ‘the accused can be convicted of that different offence’ effectively substituted the Appeals Chamber's previous and unequivocal characterizations of JCE as an available theory by means of which commission of an alleged crime by the accused could be proven.Footnote 81 If there were any doubts that this ambiguity had been intentional, they were certainly dispelled in the Brđanin Appeal Judgement, although in a fundamentally different context.
2.1. The Brđanin Appeals Chamber and dismissal of the ‘express agreement’ requirement
A low-level non-JCE perpetrator may not necessarily have desired the entire content of the common criminal plan. Yet he was ordered, procured, or instigated into commission of a crime which falls in consonance with the content of that plan. Similarly, the accused might not have been aware of, let alone have agreed to or intended, such external delegation of criminality by a fellow JCE member. Could the crime nevertheless be imputed to him via JCE of commission where the element of intent vis-à-vis the act of delegation cannot be appropriately discerned? Faced with this question, the Brđanin Trial Chamber first came to the finding that the objective element of a common criminal plan must amount to or involve an understanding or agreement between JCE members that they will commit a crime within the parameters of the Statute.Footnote 82 Based on this requirement of ‘express agreement’, it then rejected liability for conduct of non-JCE members in the following terms:
347. . . . The Trial Chamber in this context emphasises that for the purposes of establishing individual criminal responsibility pursuant to the theory of JCE it is not sufficient to prove an understanding or an agreement to commit a crime between the Accused and a person in charge or in control of a military or paramilitary unit committing a crime. The Accused can only be held criminally responsible under the mode of liability of JCE if the Prosecution establishes beyond reasonable doubt that he had an understanding or entered into an agreement with the Relevant Physical Perpetrators to commit the particular crime eventually perpetrated or if the crime perpetrated by the Relevant Physical Perpetrators is a natural and foreseeable consequence of the crime agreed upon by the Accused and the Relevant Physical Perpetrators.Footnote 83
The Appeals Chamber found the Brđanin Trial Chamber's requirement of express agreement to be a ‘significant departure from the definition of the common plan provided for in Tadić’.Footnote 84 It relied extensively on the Separate Opinion of Judge Bonomy appended to a Trial Chamber decisionFootnote 85 in which the learned judge had discussed the Second World War cases of Justice Footnote 86 and RuSHA Footnote 87 at great length. The Appeals Chamber subsequently found, with one dissent,Footnote 88 that there was support in customary law for the proposition that the accused may indeed be held liable for the conduct of non-JCE principals.Footnote 89 It is noteworthy that Judge Bonomy, and subsequently the Brđanin Appeals Chamber, arrived at such finding in spite of the fact that the Justice and RuSHA judgments contained passages in which it was clearly indicated that liability arose merely from the knowledge of the accused of the offences charged and awareness that they as individuals were connected with their commission.Footnote 90 The Brđanin Appeals Chamber subsequently employed the same approach to institute liability for crimes of excess perpetrated by non-JCE principals in the following terms:
411. 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.Footnote 91
Peculiarly, the Appeals Chamber, though in the margins, drew attention to its disinclination to address whether convictions entered for acts of non-JCE principals could be equated with the mode of liability of committing under Article 7(1).Footnote 92 Less than two years later, in Krajišnik, the Appeals Chamber was faced with a direct plea that it is improper to equate JCE with commission where perpetrators are not members of the JCE.Footnote 93 The response was formulated in the following terms:
664. . . . In the Brđanin Appeal Judgement, the Appeals Chamber left open the question of whether equating JCE with ‘commission’ is appropriate where the accused is convicted via JCE for crimes committed by a principal perpetrator who was not part of the JCE, but was used by a member of the JCE. In the present case Krajišnik was indeed convicted at least in part on the basis of crimes committed by non-JCE members but imputed to JCE members.
665. In any case, whether Krajišnik should be held responsible for having ‘committed’ the crimes in question or pursuant to another mode of responsibility, it remains that the Trial Chamber did not err in convicting him under Article 7(1) of the Statute. As such, JCE counsel fail to demonstrate how the alleged error invalidates the decision.Footnote 94
In the opinion of the present author, behind the Appeals Chamber's reluctance to clarify the nature of JCE liability rests a bifurcated concern. The first prong of it embodies a policy-dictated desire to avoid tightening the normative association between JCE and commission. It places unremitting emphasis on the broad potentials available in JCE as an expression of complicity, or even worse, as the ultimate epitome of the whole of Article 7(1). Indeed, incommensurable with low-level perpetrators such as Tadić, today it is the auctor intellectualis, individuals of the calibre of Brđanin, Krajišnik, and Karadžić, whose conduct is subject to adjudication before the ICTY chambers – those who employed their considerable military or political status to plan, prepare, order, instigate, and aid and abet low-ranking subordinates and ordinary individuals to effectuate incomprehensively nefarious criminality. In isolation, the temptation to recognize formally that the former ought to be held liable for the sum of the latter, irrespective of the strains imposed on the theory and logic of the law, may prove too strong to be outlived by the near-the-end mandates of the ad hoc tribunals. It may simply become deaf to legitimate warnings that point to the vast geographical and temporal contours of the alleged criminal conduct, the diffused nature of the mental and physical links between the masterminds and the perpetrators, and the improbability of finding the necessary proof.Footnote 95 The temptation may ultimately become yet another dogma in certain corners where international criminal law is viewed not as ‘a formalistic body of law geared to legal technicalities’ but as one which ‘aims at proscribing and punishing crimes whatever the modalities of their commission’.Footnote 96 Unfortunately for the Appeals Chamber, however, there is a second prong which takes back all that is offered by the first. It underlines a number of serious implications that are certain to arise from an accurate re-articulation of the theory. It recommends continued ambiguity as to the theory's nature, lest express recognition of complicity as its normative basis not only undermines the accumulated case law that has been either affirmed or actually produced by the same chamber but also falls short of a minimum consonance with elemental principles of imputation and logic. The remainder of this paper will focus on the second prong of the Appeals Chamber's dilemma. It outlines and elaborates the Brđanin contagion and the theoretically unfathomable problems that it has introduced into the international law of individual criminal responsibility.
3. Doubts as to the necessity of Brđanin and certainty of its misconceptions
In Brđanin JCE (I), the question whether the conduct of a non-JCE principal forms part of the common criminal plan is central to the determination of the accused's liability. However, such examination requires that one of the objective requirements of Tadić JCE, namely a plurality of persons acting in unison, be discounted. This finding is of course conditioned on the inference that the plurality requirement in Tadić presupposes some form of association, however dilute and unstructured, between two or more individuals, to the exclusion of all others. Therefore, in Brđanin JCE (I), if evidence shows that the accused shared the intention to bring about the commission of a certain crime espoused by the common criminal plan, he is found liable for the conduct of anyone outside the JCE membership, provided there is proof that the latter was used as a tool or otherwise instrumentalized by a JCE member other than the accused into committing a crime in consonance with the objectives of the common plan.
Somewhat like that of Tadić, Brđanin JCE (III)'s subjective test is whether it was foreseeable to the accused that a crime of excess would be carried out by a non-JCE perpetrator in the course of carrying out a crime of the common plan, and that the accused willingly took the risk. However, the objective basis of Brđanin JCE (III) is different in one significant respect. In Tadić JCE (III), from the three objective elements two remain constant, namely plurality of persons acting in unison, and criminal participation dispensed by the accused within the framework of the common plan. The two elements stand because the perpetrator of the crime is a member of a JCE to which the accused also contributes. But since the crime charged is one of excess and therefore not within the contours of the envisaged objectives, the requirement of a common plan becomes somewhat compromised. This defect, however, is mitigated by the following legal assumptions which flow from the perpetrator's membership of the JCE. They are (i) the perpetrator's knowledge and recognition of the general nature of the common plan; and (ii) all other JCE members’ knowledge and recognition of the perpetrator's membership and foreseeability of its risks and implications. Turning again to Brđanin JCE (III), the crime in question not only is one of excess but also is carried out by a non-JCE perpetrator. Therefore, in addition to the common plan, the objective requirement of membership too is compromised. In the end, a much-contracted objective core consisting only of the accused's participation constitutes the basis upon which proof as to the existence of dolus eventualis will have to be assembled.
Next to over-exaggerating the importance of the accused's state of mind during the perpetration of the alleged crime, this objective reduction proves detrimental in an additional, but far more important, aspect. It simply obscures the precise nature of liability that is laid at the door of the accused due to his participation in the enterprise. In Tadić JCEs, this correlative problem is avoided, since the principal perpetrator is at all times a party to the plurality. As such, he is not instrumentalized, or used as a tool, or ordered by another to commit crimes. He, rather, co-operates independently with the plurality of the enterprise in pursuance of its criminal objectives. The association between the principal, the accused, and any given number of JCE members – as weak and diluted as it may be – in turn provides for the legal assumption that every crime committed, provided that it either conforms to the common plan, or is a natural and foreseeable consequence of commission of a crime of that plan, is mutually agreed upon and therefore in every respect attributable to each and every JCE member. They are all liable as principals.
In contrast, due to imposition of an additional and external liability composite – that is, between the non-JCE principal and the JCE member other than the accused – Brđanin JCEs do away with Tadić's faculty of uninterrupted imputation. Instead, the nature of the accused's liability is made dependent exclusively on the outcome of an imputation process that in three distinct but interdependent stages links the alleged conduct with a JCE member, the accused, and the entire JCE rank and file respectively. Thus, assuming that A, B, and C are JCE members, C, acting in consonance with the common plan, murders D. Given that the principal perpetrator is a JCE member, A and B are liable as principals, even though it was C who physically and mentally satisfied the statutory requirement of the offence. Now supposing that it is only A and B who are JCE members, B uses or otherwise instrumentalizes C, a low-level non-JCE principal to murder D. Under Brđanin JCE (I), although A is found individually responsible for the crime, the nature of his liability is dependent on the nature of liability incurred by B (i.e. secondary imputation).Footnote 97 Quite naturally, such dependence gives rise to the need first to identify and properly delimit the nature of criminal liability obtained by B due to his contribution towards C's conduct (i.e. primary imputation). To add to the perplexities, ultimately there may be a need to extend further A's liability to the entire JCE rank, including, but not limited to, B (i.e. tertiary imputation). As will be demonstrated in what is to follow, it is precisely because of the inability to avoid such disintegrated imputations that Brđanin JCEs run aground.
3.1. Staying almost true to Tadić: composite JCEs
Arguably, the Brđanin Appeals Chamber did not really have to diverge from the findings in Tadić. As has been pointed out by another author, crimes espoused by very broad leadership JCEs (JCE1) such as those pleaded in Brđanin and Krajišnik, are often effectuated by low-level principals who are members of more narrow and subsidiary JCEs (JCE2).Footnote 98 If there is proof that the common criminal plan of the former is broad enough to encompass fully the common plan of the latter and if the two JCEs contain a single individual as a common co-perpetrator, then there is no reason – and if there is, by no account would it be as injurious as Brđanin's logic – not to view them as a single but composite criminal structure. In such a construction, where A and B are members of JCE1 and B is also a member of JCE2 to which C belongs, C's acts pursuant to JCE2's common plan inexorably constitute acts in furtherance of JCE1. As a next step, given that B is liable as principal for crimes of JCE2 which are perpetrated by C and other JCE2 members, his simultaneous membership of JCE1 results in A incurring principal liability for those very same crimes.Footnote 99
For the sake of fairness it is important to point out that this proposal gives rise to at least two concerns, one being theoretical and the other evidentiary. Given that B at any rate incurs liability for crimes of JCE1, it is not hard to prove that those crimes also form a natural and foreseeable outgrowth of JCE2. As such, regardless of the particular nature of JCE2, C or any other low-level JCE2 member could find himself liable for the entire array of crimes perpetrated pursuant to the common plan of JCE1. Similarly, A may find himself liable for crimes of excess perpetrated by JCE2 principals. One can of course preclude such a two-tier administration of dolus eventualis, on the basis that it departs from the principle of individual autonomy and comes too close to vicarious liability. From this proscription, it would follow that C, who is two levels removed from the principal perpetrators of JCE1, is not liable for their excessive crimes and, similarly, A is not held liable for crimes of excess perpetrated by JCE2 members who are two levels removed from him. This inhibition, however, may give rise to a peculiar setting in which A is responsible for crimes of JCE1Footnote 100 and C for crimes of JCE2, whereas B is liable for crimes of JCE1 as well as all the crimes of excess perpetrated by the members of JCE1 and JCE2. Needless to say, the Appeals Chamber, albeit tenuously, could even have instilled the two-tier administration of dolus eventualis in the composite JCE model, simply by construing the broader common plan of the JCE1 to which A and B are parties, as containing a particular agreement implicitly ratified by A and every single JCE2 principal.Footnote 101 Enacting such a flimsy objective balance – that is, the implicit agreement between the accused and the principal – would have at least ensured an uninterrupted and upward flow of principal liability towards the accused.
Perhaps the more serious and detrimental issue for the Brđanin Appeals Chamber was the resultant evidentiary burden imposed on the prosecution. Indeed, cumbersome analysis of the existence of subsidiary JCEs and the intent of the interlinking individuals would have had to precede assessment of the broad JCE. Inevitably this process would have necessitated the introduction of evidence as to the position and criminal participation of Brđanin and how he, through the medium of a fellow JCE member, contributed to the commission of the alleged crimes at the hands of low-level perpetrators in every single JCE2.Footnote 102 The anticipated scarcity of evidence concerning the existence of a shared intent by all participants in the composite of enterprises would further have intensified this burden. Indeed, the evidentiary ramifications of the composite JCE model should by no means be underestimated. However, quite another matter is whether turning the Tadić JCE on its head as a response to such legitimate anxieties is appropriate. This author posits that it is not, particularly where all available approaches to delimiting the nature of Brđanin liability seem to entail far more detrimental trade-offs.
3.2. Brđanin as an oppressive shadow of Tadić
One approach to the imputation problem in Brđanin JCEs would be to assume that the accused's criminal liability is always equal to commission. In this manner, his liability remains at all times independent of the liability obtained by a JCE member who uses or instrumentalizes non-JCE perpetrators in order to effectuate the common plan. However, this proposition is unproblematic only where the role of the delegating JCE member is purposeful enough to be characterized as indirect commission. Thus, assuming again that A and B are fellow JCE members, B uses or otherwise instrumentalizes C, a low-level non-JCE perpetrator to murder D. If the terms using and instrumentalizing are equated with indirect commission, in that C is the primary principal and B the secondary principal, then B incurs liability for having committed the murder of D. After B's liability is established pursuant to committing, and where there is proof that the murder conforms to the objectives of the common criminal plan or was a natural and foreseeable crime of excess, it becomes internalized within the JCE. Since A's liability is always equal to commission, he finds himself liable as principal for D's murder.
It is not hard to notice that this example conforms more to a Tadić JCE (I) than to its Brđanin variant. The fact that after primary imputation B incurs liability as a principal emphasizes that D's murder is committed by a JCE member as much as it is by a non-JCE perpetrator. As a consequence, it could just as easily be captured by Tadić JCEs, rendering the formulation and application of Brđanin JCEs in cases of indirect commission simply superfluous. Having said this, to characterize the Brđanin Appeals Chamber's findings purely as an underestimation of Tadić capabilities would be an error in itself. As was broached earlier, indirect commission presupposes a high degree of authority and control exerted by the secondary principal over the primary principal.Footnote 103 In Brđanin and Krajišnik, given the very broad nature of the alleged conduct, it was precisely the lack of evidence to prove such a high degree of authority and control that resulted in diversion from Tadić. Hence it is strongly implied that the findings in Brđanin effectively sought to capture the accused's liability in situations where the evidence only supported the finding that JCE members had ordered, instigated, or aided and abetted non-JCE principals. This point notwithstanding, it does not take long to realize that Brđanin's method of avoiding the evidentiary burden required under indirect commission entails a serious drawback. It effectively leads to arbitrary inflation of the purposefulness of the interference dispensed by the accused.
In an otherwise identical scenario to the above, B orders his subordinate C, who is a non-JCE member, to murder D. As a result of primary imputation pursuant to ordering, B incurs criminal liability for having ordered the offence. But once such liability becomes internalized in the JCE of commission, A incurs liability for having committed D's murder. This outcome contains a number of problems. First, it is only logical that A be held no more liable than B.Footnote 104 As was alluded to in the foregoing, the subjective and objective elements of ordering contrast with those of commission. From the two, the former is less severe in terms of purposefulness and its culpability. Accordingly, when A is held liable for having committed the offence ordered by B, the purposefulness of his criminal participation and its corresponding culpa are said to have increased. Momentarily disregarding this unjustified enhancement and proceeding with the imputation process, one is immediately faced with a second predicament. Regardless of the required objective and subjective elements of the contribution dispensed by a JCE member to a non-JCE principal's unlawful conduct, JCE pursuant to commission necessitates that on tertiary imputation all JCE members be held individually responsible as principals. As a result, after C's crime has been imputed to A under the mode of liability of commission, it becomes imputable equally to all JCE members including B. In the end, B, who after the primary imputation was found liable for having merely ordered the murder of D, finds himself liable for having committed that same offence.
In this particular context, an available remedy to the prejudice caused to A, although much more practical than conceptually sound, would be to charge him with a crime lesser in severity than the one committed by C.Footnote 105 However, the protection that this proposition offers is very limited. It suffices to mention that the context-based categorization of international crimes leaves out only a small number of offences that constitute lex specialis in relation to other offences of the same context.Footnote 106 More importantly, resort to convenient and selective prosecution in order to ameliorate JCE's arbitrariness qua the yardstick of criminal participation is bound to obscure the precise end result of that very interference and its historical significance. A conviction for committing the war crime of manslaughter is fundamentally different from a conviction for ordering the offence of murder under Article 3 ICTY Statute. Finally, if one stays true to the understanding of JCE as a vehicle by means of which all participants act in unison to effectuate a certain purpose and incur equal culpability, charging A with a lesser crime may just as easily result in underestimation of the actual harm brought about by B's criminal interference and consequently the end result pursued and effectuated by similar individuals from the whole of that collective criminality.
3.3. Going back to Tadić: diluting the common criminal plan
Judge Shahabuddeen, in his partial dissent in Brđanin, posits an alternative.Footnote 107 The learned judge, while rightly insisting that the accused can only be held liable for crimes of his fellow JCE members, holds that a non-JCE perpetrator who ‘acquiesces in the JCE and perpetrates a crime within its common purpose’, should be considered as having joined the ranks of that JCE.Footnote 108 According to the learned judge, the physical perpetrator moreover need not know the details of the JCE. Sufficient knowledge of the intendment of the common plan suffices.Footnote 109
It is not hard to see that the proposed dilution of the common plan is merely an expedient means of resuscitating the Tadić membership requirement which is obliterated in Brđanin JCEs. Hence, unlike Brđanin JCE (I), which contains a common criminal plan and the accused's participation as its objective basis, the proposed alternative gives rise to an objective core consisting of an inflated plurality acting in some fortuitous unison and the accused's participation in the realization of an end barely outlined. It is not clear why the latter would conceptually fare any better than the former, although for the sake of fairness it must be pointed out that reducing the common plan causes less prejudice to Tadić JCE (III). But this is only because Tadić JCE (III) has a compromised common plan to begin with.
This dilution entails other repercussions. It may give rise to a hypothetical setting in which a single crime committed by a low-level non-JCE perpetrator converges with the common criminal plans of every JCE that is contemporaneous with it. Consequently, the non-JCE principal's crime would become imputable at once to every member in every such JCE. This shortcoming has a parallel. Whereas the lowering of the common criminal purpose to a bare minimum may in fact result in the criminal liability of the accused, it entails risk of prejudice for the non-JCE principal. The latter, if he were to be identified and tried, could be held liable for the full array of crimes perpetrated pursuant to the common criminal plans of multiple and broad JCEs, even though he only intended to commit a single offence without having sufficient knowledge of the common purposes, let alone the intention to further them.
The final, but no less vexing, issue in this context concerns the liability of the accused at the exact point in time when the non-JCE principal carries out his first JCE-consonant crime. If one holds that C enters the JCE after he acquiesces in its common plan and carries out the JCE-consonant murder of D, then commission of D's murder constitutes a component element on which C's act of entry hinges. As artificial as it may be, consummation of the crime by C and his subsequent entry to the ranks of the JCE are to be viewed as two separate sequences, the success of the latter being entirely dependent on that of the former. As such, it cannot be asserted that A bears criminal liability precisely at the moment when C consummates D's murder. Absent evidence of A's knowledge, the alternative view entails posterior recognition, that C's requisite intent vis-à-vis the substantive offence of murder be ex post facto constructed as his requisite intent for participation in the JCE.Footnote 110
3.4. Restricting Tadić: consolidating the common criminal plan
Another approach entails that the accused be held criminally liable for having committed a crime perpetrated by the non-JCE principal only where there is proof that the JCE authorized JCE members to order, instigate, or otherwise aid and abet the commission of that crime.Footnote 111 The first difficulty with this particular approach is that by adding a requirement of authorization it imbues the common plan with a high level of coherency and structure. That ‘no proof is required that the common criminal plan was previously assembled’, and that ‘such plan may materialize extemporaneously and can be inferred from the fact that a plurality of persons act in unison to give effect to a JCE’, are the consistently upheld findings of the Appeals Chamber that militate against admittance of such cohesion.Footnote 112
Moreover, viewing the common criminal plan in such a manner would imply liability for co-authorizing others to be complicitous in the unlawful acts or omissions of non-JCE principals. Unless otherwise recognized as an inchoate crime, it is not clear how one should characterize such a notion of authorization within the law of individual criminal responsibility. For the accused's role as a co-authorizer neither amounts to his liability as principal nor convincingly qualifies as direct facilitation of a particular crime. Even if such co-authorization were to be construed as a direct act of complicity, it is unclear how the resultant liability could be imputed to the accused in the context of a JCE pursuant to commission. After all, it was in the context of commission through participation in JCE that Judge Shahabuddeen tabled this proposal.
The last issue is the implausibility of restricting proof of authorization to the ordinary law of ordering, instigating, or aiding and abetting. In the end, it would be only reasonable to insist that direct and indirect commission by the JCE members should also be subject to authorization by the common criminal plan. Again, from the prosecutorial perspective, the onerous evidentiary burden in proving such a factual ensemble would reduce the motivation to resort to JCE. Naturally, but ironically, such an effect would be more pronounced in cases of leadership of the calibre of Brđanin, where the primary actors go to great lengths to conceal factual evidence supporting the existence of such criminal incentives.
3.5. Complete departure from Tadić: towards JCE of complicity
Judge Meron in his Separate Opinion in Brđanin offers some refinements to the doctrine. He maintains that the nature of criminal liability incurred by the accused should always mimic that which becomes obtained by the JCE member when he accomplishes the commission of the crimes via a non-JCE principal.Footnote 113 Consequently, the murder of D by C pursuant to B's ordering, instigation, or otherwise aiding and abetting should become attributable to A through the law of ordering, instigation, or otherwise aiding and abetting. The prosecution, therefore, must prove a substantial contribution dispensed by A towards B's delegation of criminality to a non-JCE member. On the face of it, Judge Meron's proposal seems to hint that the theory should be reconfigured into the mould of accomplice liability, more or less in line with the notion of ‘joint enterprise’ under English common law. It is not denied that English courts have recognized joint enterprise liability in cases where a plurality has embarked on commission of an offence.Footnote 114 However, it has been strongly argued that such cases ‘are governed by the ordinary principles of secondary participation’, so that individuals other than the principals ought to be considered as accessories with respect to the commission of crimes envisaged by the enterprise.Footnote 115 Hence, within the framework of English enterprise liability, absent evidence demonstrating that the accused satisfied the statutory requirement of the crime charged, his liability is derivative – that is, dependent on the conduct of one or more primary principals who perpetrated the crimes of the enterprise.Footnote 116 But even the English law variant of JCE requires the existence of a plurality of persons comprising the accused who act on the basis of an implicit or explicit agreement.Footnote 117 Seen in this light, Judge Meron's position in effect would imply that the theory of JCE should not only normatively adapt to its English variant but also take one giant leap further. In other words, given that B has not actually committed the crime but has instead ordered or aided and abetted C in doing so, and since A's actions in isolation do not satisfy the requirements of aiding and abetting C's acts or omissions, A's liability ought to be derived from C's unlawful conduct or from B's liability. However, dependence on C's conduct would ignore the general requirement of complicity, namely that there be some form of direct and objective link (i.e. substantial contribution) between A, on the one hand, and C's unlawful conduct, on the other. Whereas derivation of A's liability from B's liability would violate the general rule of complicity, according to which accessorial liability is always derivative of another individual's commission of a crime and not that individual's complicity in commission of a crime. Furthermore, on at least one occasion the Appeals Chamber has dismissed ‘aiding and abetting a JCE’ as an accurate formulation of criminal participation.Footnote 118 It is hard to see how a JCE which orders or aids and abets others to commit crimes would be conceptually more persuasive.
A related and more daunting inadequacy of this proposal is that it lacks a basis under customary international law. It is noteworthy that the Appeals Chamber has held that it has jurisdiction in relation to a given theory of liability only where the following conditions are met: (i) the theory is provided for in the Statute either explicitly or by implication; (ii) it existed under customary international law at the relevant time; (iii) the law providing for such a mode of liability was sufficiently accessible at the relevant time; and (iv) the accused must have been able to foresee that he would be found criminally liable for his unlawful conduct through that theory of liability.Footnote 119 The Appeals Chamber in Tadić, however problematically, on more than one occasion acknowledged the guidance that post-Second World War cases offered to construction of JCE as a theory of commission.Footnote 120 Incongruously, it will be forced to revisit its own findings and reinterpret those same cases in order to establish that under certain conditions and in relation to certain individuals, JCE may spring from the law of complicity. It will have to reason further that the application of JCE of complicity to leadership cases requires no proof that the principals constituted the ranks of the plurality in pursuit of the common plans. It is doubtful whether any such re-conceptualization of the theory would conform to the principle of legality.Footnote 121
3.6. Co-perpetration through control of the crime
The notion of co-perpetration through control offers a number of solutions to the culpability problems in Brđanin JCEs and therefore deserves mention here.Footnote 122 It is recalled that, faced with uncertainty as to the identity of the low-level perpetrators, mindful of the criticisms that the JCE theory had begun to draw, and anxious about the large-scale nature of the case before it, the Stakić Trial Chamber undertook ex proprio motu to apply the doctrine of co-perpetration to the facts before it.Footnote 123 This took place against the backdrop that, during the proceedings, the prosecution had explicitly pleaded JCE as the primary theory of liability. Somewhat germane to JCE, co-perpetration captures criminal participation dispensed by a plurality of individuals pursuant to an explicit agreement or a silent consent to reach a common goal. The subjective element of the theory requires proof that the co-perpetrator possessed control over the crime and that he was aware of such control.Footnote 124 The requirement of control in turn requires proof that the co-perpetrator's participation was necessary but not sufficient on its own successfully to consummate the crime.
The Appeals Chamber, also acting ex proprio motu, rushed to annul the Trial Chamber's findings.Footnote 125 It dismissed the notion of co-perpetration as not having a proper basis in customary international law, and set out to fit the Trial Chamber's factual conclusions into the ‘firmly established’ framework of JCE.Footnote 126 The Trial Chamber's findings, surprisingly, sufficed to satisfy the subjective and objective elements of JCE,Footnote 127 in spite of the fact that neither it nor the Appeals Chamber made any attempt at identifying the low-level perpetrators.
The importance of co-perpetration for the purpose of the discussion at hand is fleshed out by the ICC Pre-Trial Chamber I decision in Lubanga.Footnote 128 In that instance, legal representatives of victims had argued that the concept of co-perpetration in Article 25(3) Rome Statute relates closely to the doctrine of JCE. The Pre-Trial Chamber undertook to address the matter by examining the Rome Statute's ‘distinguishing criterion between principals and accessories to a crime’ which had been committed by a plurality of individuals.Footnote 129 To this end, the Pre-Trial Chamber first discerned three general approaches to differentiating between principals and accessories. The first approach is formally objective and ascribes as principals all those who physically carry out the statutory requirements of an offence or parts thereof.Footnote 130 The Pre-Trial Chamber reasoned that reference made in Article 25(3)(a) to criminal liability for indirect commission even in cases where the primary principal is not criminally responsible, meant that this narrow approach had been dismissed by the drafters of Rome Statute. According to the Pre-Trial Chamber, the second approach, adhered to by the ICTY through the doctrine of JCE, is a subjective one and relies heavily on examination of the accused's state of mind at the time he made his criminal contribution. If this examination determined that the accused shared the intent that the crime be committed then he is considered as a principal to that crime irrespective of the purposefulness of his contribution.Footnote 131 The Pre-Trial Chamber also dismissed the espousal of the subjective approach by the Rome Statute. This was due to the fact that Article 25(3)(d) explicitly provided for a concept akin to JCE. This model, however, had moved away from commission and co-perpetration by seeking to establish liability of individuals that ‘in any other way contribute’ to commission or attempted commission of a crime with the aim of furthering the criminal activity of a plurality. Finally, the Pre-Trial Chamber recognized a third approach which, it claimed, had been adopted by the drafters. It embodies the notion of control over the crime. Being materially objective, this approach considers as principals not only those who carry out the objective statutory requirements of the crime in whole or in part but also those who, while being far removed from the location of the crime, nevertheless ‘control or mastermind its commission because they decide whether and how the offence will be committed’.Footnote 132
Admittedly, the notion of co-perpetration as elaborated by the Stakić Trial Chamber and the ICC Pre-Trial Chamber and its materially objective approach to the identification of principals diminish the implications of a low-level perpetrator's non-membership to the plurality. By qualifying as principals only those who control the commission of the offence, it not only stays true to commission but also does away with unjustified increases in culpability that flood the Brđanin JCEs. Unfortunately, however, the Appeals Chamber's rejection of the customary basis of the notion, although undeservingly under-elaborated,Footnote 133 is an appropriate finding. Moreover, resort to co-perpetration can simply unsettle a number of JCE convictions at a time when completion strategies have become the priority for both ad hoc tribunals. Lastly, the ICC Pre-Trial Chamber's express rejection of Tadić JCE is bound to have strengthened the Appeals Chamber's resolve not to withdraw from its findings in Stakić.
4. Conclusion
The underlying aim of this contribution has been to draw attention to the Brđanin Appeals Chamber's lack of comprehension of the limitations inherent in the theory of joint criminal enterprise. To this end, it first examined the general scope of Article 7(1) ICTY Statute and concluded that the chambers of the ad hoc tribunals have thus far viewed this provision as embodying a number of specific liability modes, each containing distinct objective and subjective elements. The importance attached to such distinctions in delimiting the nature of liability incurred by the accused well before the sentencing stage of the trials in turn demonstrated that the ad hoc tribunals, however implicitly, have adhered to the relative participation model of criminal liability. To seek additional support for its findings hitherto, the study appraised the JCE jurisprudence and relevant literature. It became clear that at least until Brđanin and Krajišnik, subject to a few narrow exceptions, JCE had been expressly viewed as a theory of principal liability.
The latter and larger strand of the study, after exposing the source of Brđanin's imputational shortcomings, inquired into the conceptual permissibility of assigning principal liability for offences perpetrated by non-JCE principals. It became clear that in the majority of such cases, the unjustified aggravation of culpability was inevitable. Of a number of proposed solutions to this problem, all entailed serious pitfalls. Charging the accused with a crime less severe than that perpetrated by the non-JCE principal resulted in a no less prejudicial diminution of the end result brought about by the delegating JCE members other than the accused. Dilution of the common plan resulted in liability for mere association, whereas its solidification depleted the theory from its usual potentials. The study moreover assessed whether it would be permissible to hold the accused liable pursuant to JCE of complicity. The findings demonstrated that construing the theory in this manner, while avoiding unwarranted alterations in culpability, fell out of line with principles of derivative liability and, more importantly, lacked a proper international customary basis. Finally, the approach to distinguishing between principals and accomplices taken by the ICTY Trial Chamber in Stakić and the ICC Pre-Trial Chamber in Lubanga was examined. The notion of co-perpetration through control of the crime seemed to alleviate the problem of unjustified aggravation of culpability but regrettably was prima facie excluded from the jurisprudence of the ad hoc tribunals.
To a limited extent, this insolubility or even the theoretical mishaps that gave cause to it, should be understood as natural attributes of a relatively young system of criminal law which nevertheless is called to adjudicate the parameters of significantly complex, system-based, and wide-scale atrocities, where the true extent of the connections between the auctor intellectualis and principal perpetrators and their crimes is seldom brought to light. However, the word ‘limited’ inevitably calls attention to the fact that such misconceptions were not entirely unavoidable. The Brđanin Trial Chamber was correct in refusing to extend the accused's criminal liability to crimes committed by non-JCE perpetrators where proof of express agreement or understanding to such effect was absent. Its findings were in conformity with the notion of JCE elaborated in Tadić and as such avoided any significant violation of the logic of imputation. Certainly, the Brđanin Appeals Chamber, by dismissing the findings of the Trial Chamber and through withholding proper reasoning as to how exactly liability would be extended to the accused in such circumstances, sought to meet proper ends. One cannot exclude the possibility, however, that in so doing, it may ultimately have caused the conceptual bankruptcy of a potentially useful theory.
