Joint Intentions to Commit International Crimes

Abstract The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the co-perpetration doctrine applied by the International Criminal Court (ICC), which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls and excesses associated with the JCE doctrine, including vicarious liability for actions that fall outside the scope of the criminal plan (JCE III), the most expansive version of the doctrine. The following Article subjects the control theory, the new darling of the professoriate, to renewed scrutiny and questions whether "control" is the most important criterion for collective crimes. This Article defends the claim that the most essential aspect to ground vicarious liability for members of a criminal gang is the mens rea of its individual members. These individuals share with each other a joint intention that the group commits a collective crime, and through a series of hypothetical examples, I argue that this fact ought to be the most central aspect of the doctrine. The original version of JCE doctrine did little to analyze these joint intentions, although it implicitly relied on them, and the co-perpetration theory has sought to sidestep them by emphasizing "control" instead. But this is an overreaction. The proper course is to return mens rea to the center of the debate and develop a nuanced account of joint intentions that avoids the excesses of the JCE doctrine. Instead of replacing JCE with the control theory of perpetration, international courts should reform JCE by eliminating JCE III because it fails to comply with the underlying theory supporting the doctrine. I. INTRODUCTION Collective criminal action has been - and remains - the most contentious area of substantive international criminal law. Three doctrines for imposing individual liability for collective endeavors have obsessively dominated die case law and literature, stretching from Nuremberg to the most current pronouncements of the ICC. These doctrines are: (i) conspiracy, (ii) Joint Criminal Enterprise (JCE),1 and (iii) co-perpetration. Although the favored doctrines keep changing, the central issue always remains how to hold a defendant responsible for the actions of another. In this Article, I attempt to shift the focus away from the standard debate regarding the relative merits and demerits of these three doctrines. This Article attempts to cut across the spectrum in a new way and focus instead on die commonalities of these theories in an attempt to elucidate an underlying theory to explain and ground how individual liability can be generated from collective endeavors. In this regard, international criminal lawyers should be particularly concerned with finding a theory that adequately explains vicarious liability for group crimes, that is, the imposition of liability to all participants for the criminal actions of a colleague. In order to accomplish this goal, it is important to first explain the relationship between the three doctrines. Consequendy, Section II argues that JCE is just a new variant of the common law conspiracy doctrine, despite repeated protestations to the contrary from the ad hoc tribunals. The underlying and essential criterion that unites the two doctrines is the existence of a criminal agreement between the parties. A criminal agreement provides externalized evidence that the parties intend for the crime to be committed. Section III then extends this analysis by briefly examining the two most pressing problems with these doctrines, and in particular conspiracy and JCE: (i) the imposition of vicarious liability for actions that fall outside the scope of the criminal plan, and (ii) the insistence that all members of the JCE are equally culpable, regardless of the scope of their participation in the endeavor. …