“Joint Criminal Enterprise” has Grown Another Tentacle!
On 26 October 2009, the Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) rendered its Judgment in the case against Messrs Sesay, Kallon and Gbao.
This Judgment marks a most extraordinary development in the field of international criminal law. It bridges the concept of individual criminal responsibility with the long reviled notion of collective liability. It appears that a criminal law that is “watertight and inescapable”, as prophesied in the Tadic Jurisdictional Decision, might now have become a reality. Should the world rejoice?
In a short, but sometimes virulent, opinion, the majority of the SCSL Appeals Chamber appears to have taken the last step in a development long in the making. According to the Majority Decision, joint criminal enterprise (JCE) liability does not require that an accused should share the intent of the other participants in that JCE to commit the crimes that are said to be within its common purpose or goal. With or without that intent, a defendant charged pursuant to that theory of liability could be held criminally responsible for all the natural and foreseeable consequences of that enterprise, however remote they might have been from the defendant’s own intentions. Nor, it seems, does the defendant need to have been in agreement with the intentions of those for whose crimes he will be convicted. Unless he extracts himself early enough from that enterprise, a defendant will be held responsible for all crimes committed in pursuit of that enterprise, regardless of the fact that (a) he had no role nor influence in areas of the country where most of the crimes were committed; (b) that he had no means of contributing to those crimes; and (c) that he did not in fact contribute to those crimes. This Judgment also appears to disregard the fact that the defendant might have made only the most remote contribution to an enterprise which his own crimes are said to be part of.
Under the theory of liability developed by the SCSL, the law of “joint criminal enterprise” has the effect, not unlike a distorting mirror, of magnifying many times over the responsibility of the accused and attaching to him criminal responsibility for acts and conduct that cannot, in any reasonable sense, be said to be personally attributable to him. Through that legal prism, the individual may be held liable for the collective and not just the personal.
Referring to JCE as a form of individual criminal responsibility is little more than legal semantics that cannot hide a different reality. It is the law – not the evidence – that creates the critical linkage between the conduct of the accused and the crimes of others for which, by a sort of legally induced rippling effect, the accused will be held responsible for crimes without the requisite intent. Under that theory of liability, any degree of causality between the acts of the accused and the criminal liability for those acts, have been replaced by a legal fiction: having entered with others into a criminal agreement and having made a contribution to one aspect of that enterprise, the accused can thereafter be held responsible for all or most of its consequences, regardless of his intentions or the nature of his contribution to the overall enterprise. And where the alleged purpose of that enterprise is something as broad and sweeping as the violent takeover of a country and its resources (as is the case with the SCSL decision), the multiplying factor legally triggered by this doctrine is almost unlimited. Under such an all-encompassing theory of liability, a local drug dealer could for instance be held responsible for the country’s drug trade, a local polluter for global warming and a train conductor carrying Jews to Auschwitz for the Holocaust. Is that a development that we should applaud or fear?
In traditional legal orders, the criminal law might be compared to a measuring cup and the facts of a particular case to liquid that can be poured in that container. The measuring cup is marked with a line which, if reached on the evidence, would coincide with the attribution of criminal responsibility to the accused: by putting the facts of the case in the cup you will see if there is enough evidence to render the accused criminally responsible. In the brave new world of the Sesay judgment, the order of thing appears to have been reversed. The measuring cup is the evidence and the liquid the law. If there is not enough law to find the accused guilty, pour some more.
A brave dissenter, Judge Fisher of the United States, has denounced a legal theory of liability that “detach[es] JCE liability from the requisite mens rea” and “abandons the keystone of JCE liability as it exists in customary international law”. By eliminating the requirement for a shared common criminal purpose, she notes, the majority “dangerously expand the scope of potential JCE liability beyond the limits allowed by law”. Membership in that enterprise, she shows the majority to assume, would be sufficient to infer an intent to commit the crimes that are part of that enterprise or the foreseeability of such crimes. She notes that, to reach that conclusion, the majority had to adopt circular reasoning, inferring Gbao’s intent from his alleged membership, ignoring the absence of evidence underlying the Trial Chamber’s finding that he was in fact a participant in that enterprise, and further ignoring the absence of evidence that he significantly contributed to its furtherance. “As a result”, she concludes, the defendant “Gbao stands convicted of committing crimes which he did not intend, to which he did not significantly contribute and which were not a reasonably foreseeable consequence of the crimes he did intend”. But convicted he stands.
Judge Fisher’s powerful dissent reminds us that it is not the law that should render a man guilty of a crime, but his conduct coupled with a guilty mind. Instead, as noted by Judge Fisher, it is now the law – as defined by the majority – that renders an accused liable, not the actions of the accused.
Since the evidence that is necessary under this new theory of liability to effectively multiply the crimes for which an accused could potentially be held responsible is so limited in scope and nature, this theory has effectively rolled back the presumption of innocence to such an extent as to render it almost meaningless. It is the very sort of theory of liability on which the Nuremberg judges turned their backs: a doctrine of liability capable of making almost everyone even remotely associated with a large-scale criminal incident responsible for the whole incident, and one capable of erasing much of the stigma that must attach to personal and culpable involvement in such crimes.
It is the lack of evidential linkage between the acts of the accused and the resulting consequences for which a defendant will be held liable that undermines the credibility of this new theory. Yes, the law is capable of developing ever further to create ever more criminality. It would be foolish to think, however, that creating more criminal liability will have any preventive effect when a man is made to answer for crimes over which he has no control. It would seem better to use the law to punish what the defendant caused or culpably failed to prevent. At a minimum, this would have the merit of creating legal standards that could potentially apply to all and not just to some.
A wise Judge once said that the legacy of international criminal tribunals will be judged not by the number of convictions, but by the fairness of their proceedings. It might be right to understand that Judge as having posited that a law that punishes unfairly would not serve the legacy of these institutions. The new and latest version of the doctrine of joint criminal enterprise appears to have done just that. There would seem to be little in that conclusion to give cause to rejoice.