Joint Criminal Enterprise - Definition

Definition

The first traces of joint criminal enterprise doctrine are identified in the post-World War II cases in which the doctrine was used under the name common purpose (or joint enterprise) or sometimes even without specific name.

The first reference to joint criminal enterprise and its constituent elements was provided in Tadic case 1999.

The Appeals Chamber of the ICTY decided on 21 May 2003 on the following definitions:

The Tribunal's jurisdiction ratione personae: in order to fall within the Tribunal's jurisdiction ratione personae, any form of liability must satisfy four pre-conditions: (i) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existed under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently foreseeable at the relevant time to anyone who acted in such a way; and (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended.

Joint criminal enterprise and the Tribunal's Statute: the reference to that crime or to that form of liability does not need to be explicit to come within the purview of the Tribunal's jurisdiction. The Statute of the ICTY is not and does not purport to be a meticulously detailed code providing for every possible scenario and every solution thereto. It sets out in somewhat general terms the jurisdictional framework within which the Tribunal has been mandated to operate. The list in Article 7(1) appears to be non-exhaustive in nature as the use of the phrase 'or otherwise aided and abetted' suggests.

The nature of joint criminal enterprise: insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated. Joint criminal enterprise is a form of 'commission' pursuant to Article 7(1) of the Statute.

Joint criminal enterprise and conspiracy: joint criminal enterprise and 'conspiracy' are two different forms of liability. While mere agreement is sufficient in the case of conspiracy, the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise.

Joint criminal enterprise and membership in a criminal organisation: criminal liability pursuant to joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.

— Appeals Chamber of the ICTY, 21 May 2003.

Writing about this finding in the Journal of International Criminal Justice in 2004 Steven Powles (a barrister who has appeared as a defence council in matters before the ICTY and the Special Court for Sierra Leone) states that the Appeals Chamber was obliged to make this declaration because there was no specific mention of "joint criminal enterprise" in the court's statutes and that "this is not ideal criminal law, especially international criminal law, requires clear and certain definitions of the various bases of liability, so as to enable the parties, both the prosecution and, perhaps more importantly, the defence to prepare for and conduct the trial."