Three conceptual problems with the doctrine of joint criminal enterprise

Journal of International Criminal Justice

Volumn 5, Issue 1, 2007, Pages 69-90

  Ohlin, Jens David ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 33947672344     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql044     Document Type: Article

References (46)

1. See e.g. Trial of Otto Sandrock and three others, British Military Court for the Trial of War Criminals; Trial of Gustav Alfred Jepsen and others, Proceedings of a British War Crimes Trial held at Luneberg, Germany (13-23 August 1946)
2. Trial of Franz Schonfeld and others, British Military Court. For an extensive discussion of the World War II case law, see Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, §195 passim (henceforth Tadić).
3. See also A. Cassese, International Criminal Law (Oxford: OUP, 2003), 183-86.
4. Tadić, §189 passim.
5. For a discussion of aiding and abetting and its difference from the doctrine of joint criminal enterprise, see A. Cassese, supra note 1, 188.
6. Tadić, §189.
7. Ibid., and passim.
8. See Tadić, at §191.
9. For a discussion of genocide, see R. Lemkin, 'Genocide as a Crime under International Law', 41 American Journal of International Law (1947) 145-151. I have argued elsewhere that genocide is necessarily collective: It is the attempt by one ethnic group to destroy another. While a single individual may commit a murder with the intent to destroy another ethnic group, it should not fall under the category of genocide until there is some desire by the ethnic group as a whole to wipe out their victims.
10. See G.P. Fletcher and J.D. Ohlin, 'Reclaiming Fundamental Principles of Criminal Law in the Darfur Case', 3 Journal of International Criminal Justice (2005), at 546. However, this view departs significantly from the Rome Statute's treatment of the crime of genocide, which does not require this collective aspect.
11. See Fletcher and Ohlin, supra note 7, at 546 (discussing the collective nature of genocidal intent).
12. See Art. 7(1) ICTYSt.
13. For example, the Tadić court relies on cases such as Kurt Goebell et al. (The Borkum Island Case), a 1944 US military court decision. See Tadić, §210-212. In that case, a US Flying Fortress aircraft was shot down over German territory and its crew was subjected to a death march. The airmen were escorted by German soldiers who encouraged civilians to beat the prisoners who were eventually shot and killed. The US prosecutor argued for a guilty verdict based on a broad theory of common criminal purpose. Although the facts of the case are directly relevant to a discussion of joint criminal enterprise, the military court issued only a simple guilty verdict and made no extensive legal findings on the issue of common criminal plans or mob beatings. Consequently, the Tadić court is left to quote the words of the US military prosecutor and infer that the judges adopted the prosecutor's reasoning. These types of cases are of negligible value for precisely this reason. Indeed, the prosecutor's discussion of the issue is internally contradictory. At one point he argues that 'it is important, as I see it, to determine the guilt of each of these accused in the light of the particular role that each one played. They did not all participate in exactly the same manner. Members of mobs seldom do'. This is a subtle point and one that I will emphasize in later sections of this article. But a sentence later the prosecutor drops this idea without explanation and contradicts himself by suggesting that 'all legal authorities agree that where a common design of a mob exists and the mob has carried out its purpose, then no distinction can be drawn between the finger man and the trigger man. No distinction is drawn between the one who, by his acts, caused the victims to be subjected to the pleasure of the mob or the one who incited the mob, or the ones who dealt the fatal blows'. This directly contradicts his earlier proclamation about the importance of individual guilt, even in the face of mob violence. It is unclear how these statements can be reconciled.
14. For example, in the Ponzano case, which involved the killing of British prisoners of war, the judge noted that liability attaches in situations where the accused is 'the cog in the wheel of events leading up to the result' and that the participation need not be so extensive that the crime would not have happened without his participation. In Ponzano, the judge concluded that liability for a common criminal plan required knowledge of the group's plan. Implicitly this suggests that the intention to further the common criminal plan is not required for liability. This case is cited and quoted with approval in Tadić, § 199.
15. Trial of Erich Heyer and six others, British Military Court for the Trial of War Criminals, Essen, 18-22 Dec 1945, UNWCC, vol. 1, at 91,
16. cited in Tadić, §207.
17. The cases heard by the IMT were governed by the Nuremberg Charter, which included only a minimalist definition of substantive offences. Subsequent prosecutions were also held under the auspices of Control Council Law No. 10, which governed the administration of Germany after the war before the return of sovereignty. However, these prosecutions rarely involved the interpretation of a sophisticated penal statute that defined war crimes or conspiracy in an explicit fashion.
18. See Tadić, §191.
19. This issue is central to the case of Salim Ahmed Hamdan. The US government claims that Hamdan, apart from being bin Laden's driver, was also his bodyguard and a combatant, although Hamdan's lawyers dispute this. See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
20. For a discussion of the criminal liability of background contributors, see G.P. Fletcher, Amicus Curiae Brief of Specialists in Conspiracy and International Law in Support of Petitioner, Hamdan v. Rumsfeld 26-28 (2006).
21. See e.g. G.P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), at 676 (discussing the criminal liability of merchants and suppliers).
22. Cases at the ICTY since Tadić have recognized and corrected this oversight. See Judgment, Kvočka et al. (IT-98-38/1), Trial Chamber, 2 November 2001, §309 (requiring a substantial contribution for liability under joint criminal enterprise).
23. See also A.M. Danner and J.S. Martinez, 'Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law,' 93 California Law Review (2005), at 150 (arguing for a more limited version of JCE that requires a substantial contribution).
24. See Model Penal Code §210.4 (defining negligent homicide and classifying it as a third-degree felony, lower than both murder and manslaughter).
25. One noticeable exception to this rule was the labelling, at the Nuremberg trials, of the entire SS and Gestapo, as criminal organizations. See Göring and others, International Military Tribunal, Nuremberg, Germany (1946).
26. US citizens are justifiably sensitive about criminalizing membership in any organization. In the 1950s, being a member of the Communist Party was illegal in most US jurisdictions and Communist party members were subject to professional sanctions and prison time. It was not necessary to prove that Communist party members engaged in additional seditious acts or plotted a revolution against the US government. Membership alone was considered sufficiently seditious to warrant criminal prosecution.
27. See Tadić, §204.
28. In these situations, commanders may also be criminally responsible under a theory of command responsibility, codified in Article 28 of the Rome Statute. This is also known in US legal circles as the Yamashita principle. Although both command responsibility and joint criminal enterprise might yield the same result for a commander - a guilty verdict - they are distinct legal doctrines. They are related insofar as both doctrines allow vicarious liability for the acts of others.
29. See State v. Tison, 129 Ariz. 526,
30. P.2d 335 (1981).
31. See Tison v. Arizona, 481 U.S. 137 (1986). The outcome of the case was criticized by Prof. Dershowitz, who represented the defendants.
32. The doctrine stems from US tort law and holds that an individual who willingly takes on certain risks cannot himself maintain an action for damages suffered during an accident. The doctrine has now been largely replaced by contributory negligence, which simply lowers the amount of recovery based on the degree of the plaintiff's fault for the accident.
33. E.g. New York Penal Law refers to this crime as 'reckless disregard for human life', and it is prosecuted as second-degree murder, one step below first-degree murder.
34. For a discussion of the issue of explicit and implicit agreements, see K. Gustafson, 'The Requirement of an "Express Agreement" for joint Criminal Enterprise Liability,' in this Symposium.
35. See e.g. Vasiljević (IT-98-32-T), Trial Chamber II, 29 November 2002, §67 ('If the agreed crime is committed by one or other of the participants in a joint criminal enterprise such as has already been discussed, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission').
36. See Art. 25(2) of the Rome Statute on individual responsibility.
37. For a discussion of the US doctrine of conspiracy, see Fletcher, Rethinking Criminal Law, supra note 16, at 646.
38. See also G.E. Lynch, 'Revising the Model Penal Code: Keeping It Real,' 1 Ohio State Criminal Law Review (2003), at 231 (describing the crime wave of the 1970s and 1980s and the political pressure that sparked ad hoc changes to American penal statutes).
39. Indeed, one innovation of US common law was to criminalize conspiracy even in the absence of any action on the part of the conspiracy's participants, although some statutes now require an overt act. The mere act of making an agreement a crime of conspiracy was thus making it easier on prosecutors to secure convictions even in the absence of proving the individual acts of the criminal plan. This notion of conspiracy per se as a conspiratorial agreement is to be distinguished from the notion of conspiracy as liability for the actions of one's co-conspirators. For a discussion of this distinction, see Fletcher, Amicus Brief, supra note 15, at 6-7.
40. For a description of the US war crimes prosecutions that took place after the conclusion of the International Military Tribunal, see P. Maguire, Law and War (New York: Columbia University. Press, 2002).
41. See e.g. Alfons Klein and others (Hadamer Trial), US Military Commission, Wiesbaden, Germany. The prosecutor in the case noted that under US law 'all distinctions between accomplices, between accessories before the fact and accessories after the fact, have been completely eliminated'.
42. For an extensive discussion of the case, see Cassese, supra note 1, at 183-84.
43. This label attributes legal personality to the entity and makes it the subject of both rights and responsibilities. For a discussion of the concept of the group person, see J.D. Ohlin, 'Is the Concept of the Person Necessary For Human Rights?' 105 Columbia Law Review (2005), at 209.
44. P.F. Strawson,'Freedom and Resentment,' in G. Watson (ed.), Free Will (Oxford: OUP, 1982) 59-80.
45. For a discussion of the philosophical implications of collective action and responsibility, see C. Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge: CUP, 2000).
46. See Kvočka et al., supra note 17. Of course, it is possible that judges at the ICC may read the 'substantial contribution' requirement into the Rome Statute on the basis of the reasoning in Kvočka. But revisions to the doctrine are preferable at the legislative - rather than judicial - level.