JCE III, the Rome Statute, and Bashir

There is an interesting discussion going on at Alex De Waal’s blog Making Sense of Darfur about the various theories of liability that might be used to hold Bashir responsible for genocide.  The discussion as a whole is well worth checking out; what I want to discuss here is whether Bashir could be convicted of genocide via JCE III, so-called “extended” joint criminal enterprise, which holds an individual who intentionally participates in a JCE responsible for crimes committed outside of the common plan if those crimes were reasonably foreseeable yet he willingly took the risk that they would be committed.  Alex’s most recent post discusses a new article in the Journal of International Criminal Justice in which Andrew T. Cayley, a former Senior Prosecuting Counsel at both the ICTY and ICC, argues that Bashir could indeed be convicted of genocide under the Rome Statute via JCE III:

In Brđanin, the Appeals Chamber of the ICTY stated that a participant in this extended form of joint criminal enterprise could be found guilty of genocide even without having the specific intent to destroy a protected group.

[snip]

It seems plausible and certainly easier to prove that Al Bashir may have pursued a slash-and-burn counter-insurgency campaign, knowing that the Janjaweed/militia proxies would employ genocidal tactics to carry out his desired political goal. If this characterization is accurate, while Al Bashir did not possess specific genocidal intent, he could still be found liable for genocide under an extended form of joint criminal enterprise within Article 25(3)(a) of the [Rome] Statute.

This argument, unfortunately, completely misunderstands the relationship between the Rome Statute and JCE III.  Cayley introduces his argument by implying that Bashir has been charged with the Rome Statute’s version of JCE, co-perpetratorship under Article 25(3)(a): “The Prosecutor has framed all eight charges around Article 25(3)(a) of the Rome Statute. Thus for the three charges of genocide the alleged basis of liability is co-perpetration or perpetration by means.  In the ad hoc tribunals, co-perpetration is the form of liability most commonly described as participation in a joint criminal enterprise.”

This is misleading in a number of important respects.  To begin with, the request for an arrest warrant states that Bashir “committed crimes through members of the state apparatus, the army and the Militia/Janjaweed in accordance with Article 25(3)(a) of the Statute (indirect perpetration or perpetration by means).”  Perpetration by means is not JCE, as is obvious from a comparison of their elements.

Moreover, although Article 25(3)(a) also criminalizes committing a crime “jointly with another,” that theory of liability is much more restrictive than JCE.  JCE only requires the accused to have participated in some way in the common plan; the participation does not even need to be “significant.”  By contrast, as I point out in the article linked to immediately above, to be convicted as a co-perpetrator “jointly with another” under the Rome Statute,

a person must have “joint control” over the commission of the crime. A person has such control if he or she makes an “essential” contribution to the common plan. A contribution is essential if the crime could not be committed without it – if, in other words the person has “the power to frustrate the commission of the crime by not performing” his or her task.

It is thus inaccurate to describe Article 25(3)(a)’s “jointly with another” liability as a form of JCE, even in terms of “basic” JCE (JCE I).  And it is even more inaccurate — incorrect is actually the better term — to claim that JCE III is included within Article 25(3)(a).  JCE III is satisfied by recklessness or its civilian cousin, dolus eventualis. “Jointly with another” liability, by contrast, requires proof of knowledge or intent: Article 30 of the Rome Statute says that “[u]nless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge,” and Article 25(3)(a) does not “otherwise provide” a lesser mens rea for “jointly with another” liability.  The minimum mens rea required for “jointly with another” liability is thus much higher than the minimum mens rea required for JCE III: knowledge requires “awareness that… a consequence will occur in the ordinary course of events,” while recklessness/dolus eventualis requires only awareness that a consequence may occur.

Nor is the absence of recklessness/dolus eventualis from Article 25(3)(a) an accident. Earlier drafts of Article 30 included a definition of recklessness, but that provision was deleted when the drafters realized that the word “reckless” did not appear in any of the definitions of crimes.  Moreover, most of the States that were involved in drafting Article 30 were reluctant to base criminal responsibility for serious international crimes on anything less than knowledge.  (The one exception, of course, being the responsibility of civilian superiors under Article 28, which “otherwise provides” a mens rea akin to recklessness/dolus eventualis.)

These considerations are more than enough to dispel the idea that JCE III can be read into Article 25(3)(a).  But it is also worth noting, in terms of Bashir’s potential criminal responsibility, that the Lubanga Decision on the Confirmation of Charges specifically rejects the idea that a defendant charged with “jointly with another” liability could be convicted of a specific-intent crime like genocide via some sort of JCE III-like argument:

349.  The Chamber considers that co-perpetration based on joint control over the crime requires above all that the suspect fulfil the subjective elements of the crime with which he or she is charged, including any requisite dolus specialis or ulterior intent for the type of crime involved.

In other words, to be convicted of genocide via “jointly with another” liability, a defendant must have personally acted with the specific intent to destroy the protected group; consciously ignoring the possibility that the common plan would lead to the commission of genocide is not enough.

If JCE III cannot be read into Article 25(3)(a), what about Article 25(3)(d), which holds criminally responsible a person who “[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose”?  Unfortunately for proponents of JCE III, the argument fails here, as well.  First, Article 25(3)(d) seems to require the contribution be directed toward a crime that is specifically contemplated by the criminal group.  That would rule out being held liable for contributing to an unplanned crime, which is the raison d’etre of JCE III.  And second, there is once again a fatal mens rea problem — the requisite contribution must be made either “with the aim of furthering” the group’s criminal activity or “in the knowledge of the intention of the group to commit the crime.”  As noted earlier, knowledge (to say nothing of intent) is a much higher mens rea than recklessness/dolus eventualis.

Finally, it is important to point out that even if Article 25(3)(d) did embrace JCE III, it would still not be an appropriate vehicle for convicting Bashir of genocide: “contribution” is a form of accessory liability, not prinicipal liability — and a “residual” form of accessory liability at that, one that most ICL scholars agree should only be invoked where principal liability or liability for aiding-and-abetting cannot be proven. “Contribution” liability may thus be appropriate for lower-level government officials like Kushayb and Haroun, but it is not appropriate for a head-of-state such as Bashir, who needs to be charged as a principal.

The Prosecutor, of course, recognizes this.  That is why the request for the arrest warrant relies on perpetration by means, which is a form of principal liability, and not on “contribution.”  As I will explain in a later post, that was the correct decision: perpetration by means — not JCE III — provides the Prosecutor with the ideal vehicle for convicting Bashir of genocide.