Extended Joint Criminal Enterprise in International Criminal Law
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| DOI | http://doi.org/10.1177/0022018316675551 |
| Subject Matter | Articles |
The Journal of Criminal Law
2016, Vol. 80(6) 436–445
Extended Joint Criminal
ª The Author(s) 2016
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DOI: 10.1177/0022018316675551
Criminal Law: From
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Foreseeability, to Intention,
to Control over the Crime
Stephen Ranieri
Adelaide University, Adelaide SA, Australia
School of Law, University of South Australia, Adelaide SA, Australia
Abstract
This article examines the doctrine of extended joint criminal enterprise (‘JCE’) as a mode of
liability within international criminal law (‘ICL’). The article first provides an overview of
extended JCE based on its current expression in international customary law by the Inter-
national Criminal Tribunal for the Former Yugoslavia in the Tadic´ case. Consideration will then
turn to the problems associated with the application of extended JCE. In particular, recent
developments in the United Kingdom in the case of R v Jogee will be discussed, and the
implications for the future of extended JCE in ICL as a matter of international custom. Next,
the viability of the JCE doctrine will be considered for the purposes of proceedings before the
International Criminal Court (‘ICC’). Ultimately, it is concluded that extended JCE has a limited
jurisprudential basis before the ICC. However, it is suggested that extended JCE may live on
through art 25(3)(d) of the Rome Statute.
Keywords
Extended Joint Criminal Enterprise, International Criminal Law, JCE III, International Criminal
Court, R v Jogee
Introduction
Extended joint criminal enterprise (‘JCE’) is one of the most contentious modes of liability within
international criminal law (‘ICL’). The first section of this article will provide an overview of JCE
(including extended JCE or JCE III) based on its current expression in international customary law by the
Corresponding author:
Stephen Ranieri, School of Law, University of South Australia, 228 Hindley Street, Adelaide SA, Australia.
E-mail: stephen.ranieri@unisa.edu.au
Ranieri
437
Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) in the
Tadic´ case.1 The next section will examine the problems associated with the application of extended
JCE. In particular, recent developments in the United Kingdom in the case of R v Jogee2 will be
discussed, and their implications for the future of extended JCE as a matter of international customary
law. The final section will examine the viability of the extended JCE doctrine for the purposes of
proceedings before the International Criminal Court (‘ICC’) under the Rome Statute.3
The Elements of a Joint Criminal Enterprise
JCE, as a mode of liability, reflects strong public policy considerations in condemning concerted criminal
activities, especially those involving serious violence or organised crime.4 JCE at common law has a ‘tortured
procedural history’, emerging from antiquated notions of ‘degrees’ of culpability and accessorial liability,
which depended on the nature of the offence assisted (originally, significant distinctions were drawn between
treasons, felonies and misdemeanours) and, in the case of felonies, the time the assistance was rendered;
leading to expressions such as ‘principal in the first/second degree’ or ‘accessory before/after the fact’.5 The
exact year is unknown, but by the time of Bracton’s publication in 1250, the common law recognised that
before criminal liability was imposed on an accessory, a principal offender must have already been convicted.6
The common law has evolved in contemporary times such that the former distinctions are now otiose.7
Conceptually, a JCE involves a plurality of persons participating in a shared common plan, design, or
purpose which amounts to a crime. In terms of conduct elements in a JCE, liability attaches through:
1.
the involvement of two or more persons in the commission of a crime;
2.
the existence of a shared common plan, design, or purpose; and
3.
the participation of one or more accused, whose participation makes a ‘significant contribution’
to the crime.8
Participants to a JCE are designated as joint principal (co)offenders, not as accessories or secondary
participants. Thus the kernel of the JCE model lies in the shared intention of the participants. This differs
from the criminal liability of an aider or abettor, with the latter requiring only an intention to assist or
encourage a principal offender; such accessories ‘[do] not share, either at the outset or later, the criminal
1. Prosecutor v Tadic´ (Judgment) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-94-
1-A, 15 July 1999). On 24 August 2016, the High Court of Australia delivered its judgment in Miller v The Queen; Smith v The
Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30 where the majority (French CJ, Kiefel, Bell, Keane,
Nettle and Gordon JJ; Gageler J dissenting) refused to restate the Australian common law consistent with the UK position in R v
Jogee [2016] 2 WLR 681. The appeal was allowed on other grounds, namely that the verdicts of murder were unreasonable. The
proceedings were remitted to the Supreme Court of South Australia (Court of Criminal Appeal) for determination.
2. R v Jogee [2016] 2 WLR 681.
3. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July
2002) (‘Rome Statute’).
4. See, e.g., the considerations of the Appeals Chamber of the Special Tribunal for Lebanon in Prosecutor v Ayyash et al.
(Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging)
(Special Tribunal for Lebanon, Appeals Chamber, Case No STL-ll-01/I, 16 February 2011) [245].
5. K.J.M. Smith, A Modern Treatise on the Law of Criminal Complicity. (Oxford University Press: Oxford, 1991) 20–2.
6. Smith, above n. 5 at 22 fn 17 citing Henry de Bracton, On the Laws and Customs of England, Volume 4: Translated with
commentary by Samuel E. Thorne (Harvard University Press: Cambridge, MA, 1968) 360–1.
7. See, e.g., Osland v The Queen (1998) 197 CLR 316, 399–403 (Callinan J), R v Jogee, above n. 2 at 696 [43] citing Johns v The
Queen (1980) 143 CLR 108, 125.
8. Antonio Cassese, International Criminal Law, 3rd edn (Oxford University Press: Oxford, 2013) 163, Prosecutor v Tadic´, above
n. 1 at [227] (iii), Prosecutor v Karadzˇic´ (Decision on prosecution’s motion appealing trial chamber’s decision on JCE III
foreseeability) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-95-5, 25 June 2009)
[18].
438
The Journal of Criminal Law 80(6)
intent of the perpetrator’.9 This issue is particularly germane given that a conviction for aiding and
abetting generally carries a lower sentence, reflecting lesser criminal culpability. By contrast, some
commentators assert that the criminal culpability of a participant to a JCE is higher than that of an aider
and abettor as they are convicted as a principal offender.10 The line between a JCE and aiding and
abetting is occasionally blurred;11 however, any difference in culpability or disparity among participants
to a JCE is a matter dealt with at the sentencing stage.12
In ICL, there are salient policy distinctions as to why a JCE (and its derivatives) assume greater impor-
tance in the context of international crimes. The first is that ICL itself is an ‘expression’ of collective
criminality, often reflecting governmental or military policy in the context of widespread and systematic
criminal offences against civilians in armed conflict.13 In this sense, there has been a focus on indicting heads
of state or senior military or civilian personnel (as the ‘auctor intellectualis’),14 for their role in orchestrating
said mass crimes.15 Secondly, the crimes that occur in the international context are inherently heinous; such
that there is an almost axiomatic requirement that all perpetrators of such atrocities are held criminally
liable.16 However, such ‘policy’ considerations were firmly rejected by the ICTY Appeals Chamber in
Brd¯anin ‘as the basis for a theory of individual...
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