Joint criminal confusion

New Criminal Law Review

Volumn 12, Issue 3, 2009, Pages 406-419

  Ohlin, Jens David ^a  

^a MIT Sloan School of Management   (United States)

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[No Author keywords available]

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EID: 70450105838     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2009.12.3.406     Document Type: Article

References (60)

1. The crime of aggression was excluded from the jurisdiction of the ICC until such time as the Assembly of State Parties could agree to and adopt a definition of the crime. Since the passage of the Rome Statute in 1998, the question of aggression has dominated both the diplomatic and scholarly agendas. See, e.g., Troy Lavers, [Pre]Determining the Crime of Aggression: Has the Time Come to Allow the International Criminal Court Its Freedom?, 71 Alb. L. Rev. 299 (2008)
2. Giorgio Gaja, The Long Journey Towards Repressing Aggression, in The Rome Statute of the International Criminal Court: A Commentary 427 (Antonio Cassese, Paolo Gaeta & John R.W.D. Jones eds., 2002) [hereinafter Rome Statute Commentary].
3. Prosecutor v. Tadić, Case No. IT-94-1-A, ICTY Appeals Judgment, 226-229 (July 15, 1999).
4. For a defense of the doctrine in light of recent criticisms, see Antonio Cassese, The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise, 5 J. Int'l Crim. Just. 109 (2007) [hereinafter Cassese, Proper Limits] (noting that JCE has become the "darling" of prosecutors). The comment echoes the famous phrase from Judge Learned Hand that conspiracy was the "darling of the modern prosecutor's nursery." See Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925).
5. Exact statistics have not been compiled, though anecdotal evidence suggests that the vast majority of indictments charged JCE as a mode of liability. See Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 137 (2005) (referring to JCE as "the nuclear bomb of the international prosecutor's arsenal").
6. The provision provides that "a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ... (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime...."
7. Compare Kai Ambos, Article 25: Individual Criminal Responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article 743, 754 (Otto Triffterer ed., 2d ed. 2008) (subsidiary liability in the absence of liability for aiding and abetting), with Albin Eser, Individual Criminal Responsibility, in Rome Statute Commentary, supra note 1, at 767, 802 (complicity in group crimes).
8. See Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Jan. 29, 2007).
9. See Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise, 5 J. Int'l Crim. Just. 69 (2007).
10. See also Thomas Weigend, Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges, 6 J. Int'l Crim. Just. 471, 478 (2008) (noting that Article 25(3)(d) "probably cover[s] at least some forms of JCE"). Even the Tadić court recognized when it originally formulated JCE that a "substantially similar notion was subsequently laid down in Article 25 of the Statute of the International Criminal Court" and that "this provision upholds the doctrine under discussion." See Tadić at 222.
11. Cf. Kai Ambos, Amicus Brief for Pre-Trial Chamber on Joint Criminal Enterprise, in Criminal Investigation Against Kaing, Case No. 001/ 18-07-2007-ECCC/OCIJ (PTC 02), Extraordinary Chambers in the Courts of Cambodia, at 15 (Oct. 27, 2008), available at http://www.eccc.gov.kh/ english/cabinet/courtDoc/164/D99_3_27_EN_Ambos.p [hereinafter Ambos, JCE Amicus Brief].
12. See also Ohlin, Three Conceptual Problems, supra note 8, at 80
13. George P. Fletcher & Jens David Ohlin, Reclaiming Fundamental Principles of Law in the Darfur Case, 3 J. Int'l Crim. Just. 546 (2005) (JCE is "the statutory surrogate of joint criminal enterprise").
14. Cf. Ambos, JCE Amicus Brief, supra note 9, at 14-15.
15. Lubanga, 335.
16. Lubanga, 337.
17. See Eser, supra note 6, at 803.
18. Id. at 757. The controversial history of the concept of conspiracy in the law of war is well documented in George P. Fletcher, Amicus Curiae Brief of Specialists in Conspiracy and International Law in Support of Petitioner, 2006 WL 53979 (arguing that conspiracy is not a triable offense under the laws of war), filed in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
19. See Ambos, supra note 6, at 759. The use of the word "dogmatic," or dogmatisch in German, refers to criminal law theory.
20. See S.C. Res. 1757 art. 3(1)(b), U.N. Doc. S/RES/1757 (May 30, 2007), creating the Statute for the Special Tribunal for Lebanon.
21. See Antonio Cassese, International Criminal Law 213 (2d ed. 2008) ("the gist of Article 25(3)(d) is the regulation not of JCE but rather of a different mode of responsibility"). This represents a departure from his earlier view. Compare with Cassese, Proper Limits, supra note 3, at 132
22. Prosecutor v. Tadić, Case No. IT-94-1-A, ICTY Appeals Judgment, 222 (July 15, 1999).
23. Other scholars also took the same or similar views. See William A. Schabas, An Introduction to the International Criminal Court 211 (3d ed. 2007)
24. Ohlin, Three Conceptual Problems, supra note 8, at x
25. Kai Ambos, Joint Criminal Enterprise and Command Responsibility, 5 J. Int'l Crim. Just. 159, 172 (2007) ("the only form of participation comparable with JCE II or III is that of collective responsibility as laid forth in Article 25(3)(d) ICC Statute"). However, Cassese's most recent view is supported in part by Eser's analysis in the Rome Statute Commentary.
26. See Eser, supra note 6, at 803 (noting that the "group factor of this type of complicity ... may still have some symbolic relevance").
27. See Cassese, International Criminal Law, supra note 17, at 213.
28. See, e.g., 18 U.S.C. §2.
29. For example, 18 U.S.C. §2(b) penalizes an individual who "willfully causes an act to be done which if directly performed by him or another would be an offense," thus suggesting at first glance that the act is performed by another, not by the accomplice.
30. Indeed, note that 18 U.S.C. §2(b) allows accomplice liability for performing acts indirectly; there is no requirement of outside status in either federal or state statutes, the Model Penal Code, or the case law.
31. See, e.g., People v. Russell, 91 N.Y.2d 280 (N.Y. 1998).
32. This produces a similarly expansive liability scheme as Pinkerton conspiracy liability. See, e.g., People v. Luparello, 187 Cal. App. 3d 410 (Ct. App. 1987).
33. See Cassese, International Criminal Law, supra note 17, at 213 (perhaps assuming that contributions by definition come from non-members).
34. See id. at 213 n.37 (discussing concorso esterno in associazione mafiosa).
35. For a discussion of the drafting history at Rome, see Doug Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Nw. U. J. Int'l Hum. Rts. 304, 313 (2008).
36. Diplomats involving in the negotiations at Rome confirm that the Terrorism Convention was the inspiration for the text of the Article 25(3)(d) compromise, though also acknowledging that the text was taken "with slight modifications." See Per Saland, International Criminal Law Principles, in The International Criminal Court: The Making of the Rome Statute 189, 199 (Roy Lee ed., 1999).
37. International Convention for the Suppression of Terrorist Bombings, G.A. Res. 164 art. 2(3)(c) at 389, U.N. GAOR, 52nd Sess., Supp. No. 49, U.N. Doc. A/52/49 (Jan. 8, 1998).
38. Also, the ICTY Appeals Chamber noted in Tadić that the drafting history of the Terrorism Convention "does not shed any light on the reasons behind the adoption of this text." See Prosecutor v. Tadić, Case No. IT-94-1-A, ICTY Appeals Judgment, 221 (July 15, 1999).
39. See Tadić at 188. The controversy surrounding the Tadić opinion's structural reading of Article 7(1) of the ICTY Statute is critically discussed in Ohlin, Three Conceptual Problems, supra note 17, at 71-74.
40. See, e.g., Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Jan. 29, 2007), 322 & passim.
41. For a critical discussion of the interpretative relationship between the ICC's analysis of the Rome Statute and the ICTY jurisprudence on JCE, see Héctor Olásolo, Developments in the Distinction Between Principal and Accessorial Liability in Light of the First Case-Law of the International Criminal Court, in The Emerging Practice of the International Criminal Court (Carsten Stahn & Göran Sluiter eds., 2009).
42. Indeed, the Pre-Trial Chamber in Lubanga concluded that Article 25(3)(d) codifies a residual form of liability "which cannot be characterised as ordering, soliciting, inducing, aiding, abetting or assisting within the meaning of article 25(3)(b) or article 25(3)(c) of the Statute, by reason of the state of mind in which the contributions were made." Nonetheless, the PTC referred to article 25(3)(d) as being "closely akin" to the concept of JCE. See Lubanga, 335.
43. This result would be mandated by the requirement that the criminal law requires advanced legislative enactments, or nullum crimen sine lege scripta. For a discussion of the maxim, see Michael Bohlander, Principles of German Criminal Law 18 (2009).
44. Of course, common law countries, with a history of prosecuting individuals for common law crimes, have shown far less fidelity to this maxim. The maxim's status within international criminal law is both controversial and continually contested because the discipline draws from both civil and common law traditions. Furthermore, the discipline is only now going through a process of rigorous penal codification (in the form of the Rome Statute), following a lengthy historical period of wartime prosecutions for violations of the laws of war that were either uncodified or lightly codified. See, e.g., Instructions for the Government of Armies of the United States in the Field, General Order No. 100 (Lieber Code) (1863).
45. See Cassese, International Criminal Law, supra note 17, at 212 (citing article 25(1), although probably intending to cite article 25(3)).
46. The Pre-Trial Chamber concluded that the mental state of dolus eventualis would meet this requirement but not "[w]here the state of mind of the suspect falls short of accepting that the objective elements of the crime may result from his or her actions or omissions...." See Lubanga, 355.
47. Id. However, the PTC could conceivably reach the opposite result if they view JCE III as a form of dolus eventualis.
48. See, e.g., Gerhard Werle & Florian Jessberger, Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law, 3 J. Int'l Crim. Just. 35, 43 (2005) (noting the controversial nature of this position).
49. See Bohlander, supra note 31, at 18
50. Fletcher & Ohlin, supra note 9, at 539 ("fundamental concerns ... lead us vigorously to oppose the reliance on CIL as means of inculpation in criminal prosecutions, whether in domestic courts or international courts").
51. International Convention for the Suppression of Terrorist Bombings, supra note 27, art. 2(3)(b).
52. See Rome Stat. art. 25(3)(c) ("for the purpose of facilitating ...").
53. See Cassese, International Criminal Law, supra note 17, at 213. The view is supported by Eser, supra note 6, at 802 (complicity for group crimes requires a group of at least three persons).
54. The reading might be plausible if we were comparing one provision on aiding and abetting as a form of derivative liability with a second provision on participation in joint criminal endeavors. But that is not the comparison here. We are comparing one general provision on complicity with a second, more specific, provision on complicity.
55. This is made clear by, for example, Eser, supra note 6, at 802-03 (noting that the assistance level required for liability "is even more difficult to circumscribe than the assistance in subparagraph (c)").
56. See supra notes 13-15 and related text.
57. Indeed, Article 30 specifically defines intent, in cases of conduct, as "that person means to engage in the conduct."
58. This standard for aiding and abetting is sufficient to establish liability for complicity in some jurisdictions.
59. See Ambos, supra note 9, at 14.
60. See Jens David Ohlin, Commentary on Prosecutor v. Stakić [The Co-Perpetrator Model of Joint Criminal Enterprise], 14 Annotated Leading Cases of International Criminal Tribunals 739 (2008).