23 May Punishing Atrocities Symposium: Exploring Joint Criminal Enterprise
I am honored to provide this commentary on this terrific new book by Jonathan Hafetz. Let me begin by highlighting some of the things that make this publication a valuable contribution to the literature about International Criminal Law (“ICL”).
First of all, the book is an extraordinary reference on international criminal tribunals. Someone who knows nothing about the field, will come up to speed very quickly while reading this book. Jonathan covers the major historical developments, as well as the key policy and legal challenges. He provides invaluable analysis for practitioners, while also providing an extensive guide to relevant scholarship. He does it all expertly and with admirable concision. I learned a lot reading the book, even with respect to areas of ICL to which I have dedicated substantial research and teaching.
But the book is not primarily a reference volume. It marks a significant scholarly contribution. Jonathan comprehensively surveys seemingly disparate areas of ICL. He shows how they connect to this central theme of fairness, and are informed by common set of tensions that pervade the field. He identifies areas where the law is lacking, and makes various proposals for reform. But he does so with humility, recognizing that often there is no silver bullet, because there are strong competing considerations at play. In this way, Jonathan has written a book that is very generous to readers who wish to conduct their own research in ICL, and he provides fertile ground for those who might reach different conclusions or take different positions than he does.
Jonathan’s analysis of “fair trial” concerns is broad. He focuses not only on procedural rights such as the presumption of innocence, the accused’s right to confront the evidence against her and so forth; but also on the fairness of the substantive criminal law applied in international criminal trials; as well as fairness relating to matters of prosecutorial policy including, in particular, case selection. One things I admire about the book is how so many of its contributions take the form of nuanced topic-by-topic insights rather than sweeping conclusions, but this feature of the book also makes it challenging to comment on the book as a whole within the confines of a single blog post. Accordingly, I will focus one aspect of Jonathan’s substantive criminal law analysis: his treatment of joint criminal enterprise (“JCE”) and related modes of criminal responsibility. In so doing, I attempt to highlight some of the broader complexities involved in the effort to evaluate fairness at the level of substantive criminal law, complexities that also have relevance for related controversies concerning aiding and abetting and superior responsibility among other topics.
In the book, Jonathan devotes substantial attention to the various modes of responsibility adopted and applied by international criminal tribunals and he expresses various concerns about the potential overreach of criminal responsibility. Among other points, he criticizes the controversial approach to joint criminal enterprise (“JCE”) adopted by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and subsequently embraced by other tribunals, which holds all members of a JCE responsible for all crimes committed by any JCE member within the common plan and even, pursuant to category of JCE liability known as “JCE III,” for foreseeable offenses outside the common plan. Jonathan objects that “attributing responsibility to an individual without regard to his role and function in the commission of a crime conflicts with the principle that individuals should be punished based on their culpability,” and he compares the ICTY’s approach unfavorably both to the almost identical Pinkerton doctrine embraced—with some additional limitations–by the U.S. federal courts, and to the International Criminal Court’s far narrower doctrine of co-perpetration.
As a Jonathan observes, the JCE doctrine has received substantial scholarly criticism. In many respects I agree with that criticism and also with Jonathan’s own thoughtful observations. Nevertheless, I think that the assessment of whether or not a particular substantive doctrine does, in Jonathan’s words “conflict with [a tribunal’s] commitment to the fair treatment of the accused,” raises additional complexities that are worth exploration.
There are in fact two related but distinct questions of fairness at here that are at the heart of the scholarly debate but are not always clearly distinguished. One question concerns the lines between guilt and innocence. Does the law improperly convict people for harms for which they are not, in fact culpable? The other question concerns the grading of culpability. Does the law fail to adequately differentiate degrees of guilt by, for example, treating all JCE members as guilty of the same crimes despite significant differences in their roles and respective contributions?
I will start with the first. When the I teach the Tadić case—in which the ICTY Appeals Chamber first announced its approach to JCE—my students usually defend the accused’s conviction on a JCE theory including for the murder of five people in the village of Jaskići notwithstanding the absence of any finding that he had personally agreed to or participated in the killing. Even without such evidence, they argue, it was enough that Tadić joined a plan to ethnically cleanse the village and participated in the operation. To a certain extent, I agree. While I have reservations about calling Tadić a murderer on that evidence alone, the foreseeability of murder in the context of violent ethnic cleansing does—in my view—render him more culpable than a similarly situated person who joins a less predictably murderous enterprise. This conclusion is further to subject qualifications that have consumed substantial attention in the debate over JCE. It matters which mens rea, if any, the accused possessed toward the forbidden result, and also what form the accused’s involvement in the JCE took. My aim here is not to attempt a full defense of the JCE liability, but instead merely to observe that, at least in some cases, the JCE approach may capture culpability that might not otherwise be captured by a more restrictive approach.
Jonathan does not take a position on the outcome of the Tadić case, but he does emphasize the broader concern about the extension of JCE to “reach more marginal cases or acts more remote from an agreed upon criminal plan.” I also share that concern, but this point raises a further question about how to evaluate fairness in the criminal law. Should one focus on the risk of unfairness or on actual examples of unfair outcomes? While noting the risk of attenuated culpability, Jonathan does not cite any particular cases that, in his view, resulted in unfair convictions as a result of JCE charges. As I have argued elsewhere in work that Jonathan generously cites, the fairness of substantive criminal law often requires more than rote application of formal legal elements. In the somewhat analogous context of aiding and abetting, for example, the debate over the ICTY’s knowledge-based approach to complicity versus the ICC’s purpose-based approach can mask the fact that each approach is susceptible to both narrow and broad interpretations. The purpose-based approach—associated also with the American Law Institute’s Model Penal Code—is surprisingly ambiguous, whereas the ostensibly broader knowledge-based approach hinges critically on how one evaluates the substantiality of the accused’s contribution to crime. The inevitable result is that judicial judgment will often play a greater role in ensuring just results than will the formal elements of liability. So too it may be with JCE.
Perhaps, however, Jonathan’s main concern is not about wrongful conviction but, instead, about unfair labeling. Undeniably, the JCE doctrine sweeps broadly, treating quite differently situated persons as all being guilty of the same crime or set of crimes. In this respect, the case law and statute of the ICC marks a contrast with its more differentiated approach. Those who make essential contributions to a criminal plan are subject to prosecution as principal perpetrators. Those who purposely aid a crime are responsible for aiding and abetting. Meanwhile, those who make knowing, less essential contributions to a criminal enterprise are subject to prosecution under a separate article, albeit without any provision for JCE III-type liability.
How much this question matters may partly be a matter of legal culture. In the United States, the law typically treats principal perpetrators and accomplices alike. For example, federal law provides that one who “aids, abets, counsels, induces, or procures” the commission of a federal offense is “punishable as a principal.” And as detailed above, The Pinkerton / JCE approach has the effect of further widening the circle of people who are all guilty of the same offense. German law, by contrast, assigns moral significance to the principal / accomplice distinction with the result that the law mandates substantially mitigated sentences for those who merely aid offenses committed by others. This approach, in turn, puts pressure on how principal / accomplice distinction is defined. Hence, the German approach—embraced by the ICC in its case law on co-perpetration—defines as principal perpetrators not only those who personally complete the objective elements an offense, but also those who exercise control over the offense through essential contributions. This difference makes sense considering that the German model makes a categorical moral distinction whereas the U.S. model does not.
To return now to Jonathan’s argument, is it right to conclude that the ICC’s German-inspired approach—as Jonathan suggests—is fairer than the ICTY’s? As a general matter, I agree that it is better to differentiate between degrees of guilt than it is to lump differently situated offenders under the same heading. But the ICTY’s approach does not preclude differentiation. It simply puts greater emphasis on judicial findings and on sentencing. Irrespective of the legal label, the judges remain free to perform individualized assessments of culpability and to sentence accordingly. In fact, the situation is largely the same at the ICC. Notwithstanding its greater differentiation of labels, the ICC Statute mirrors the statutes of the ICTY and other international criminal tribunals with its discretionary approach to sentencing. Article 76 requires the Court to “take into account such factors as the gravity of the crime and the individual circumstances of the convicted person” when imposing a sentence, but there is no mandatory distinction based on the particular mode of liability underlying the conviction. Hence, there is nothing to prevent the Court from giving a principal perpetrator a lenient sentence or an accomplice a severe sentence should the sentencing judges determine that individual circumstances so require. Once again, the ultimate question of fairness to the accused involves more than formal elements or legal labels.
These are, of course, relatively modest observations, and not intended to detract from Jonathan’s compelling and wide-ranging analysis. My point is merely to highlight some of the complexities involved in assessing what is fair what is not fair in substantive criminal law, especially when comparing the relative fairness of approaches that may be less distinct than they first appear. And once again, congratulations to Jonathan on his impressive accomplishment!