Guest Post by Wayne Jordash: Joint Criminal Enterprise at the Special Court for Sierra Leone
On the 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 (RUF).
Let us recall the words of Guenael Mettraux earlier this week in his piece entitled “Joint Criminal Enterprise’ has Grown another Tentacle”:
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 has having posited that a law that punishes unfairly would not serve the legacy of these institutions.
Mettraux decried the creation of a basic form of Joint Criminal Enterprise by the majority of the SCSL Appeals Chamber. One of the key novelties of this new form lies in its attribution of responsibility without requiring ‘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’.
These cautionary admonishments should resonate through the scholarly analysis of the RUF Trial and Appeal Judgments at the SCSL. The Judgments, finding or upholding the convictions on scores of crimes committed purportedly pursuant to the basic form of JCE, are a salutary reminder of the dangers that lurk within international prosecutions seeking to attribute guilt for the crimes of thousands committed during a lengthy and bloody war to a handful of high profile accused. As the Judgments in the RUF case demonstrate, Joint Criminal Enterprise at the SCSL did not just grow another tentacle at the SCSL: it sprouted several – each lacking the dexterity to return judgments consistent with the principle of individual culpability.
Volumes of jurisprudence and commentary attest to the inherent risks when criminal liability is judged through the notion of a common criminal plan shaped by a plurality of people, where each member must make a co-ordinated contribution to allow the plan to be furthered by others. The risks of a lapse into forms of responsibility whose principle focus is the criminality of the group – and not the acts of the individual – are well known. Triers of these cases must advance carefully, clinging tightly to principles of fairness and the safeguards contained in the procedural regimes developed at the ICTY and ICTR. Without calling on these safeguards, this lapse is not only likely, but inevitable, with predictable consequences for the trial process and the legitimacy of international criminal law.
The SCSL’s confused and dangerous new form of JCE could and should have been avoided. It did not simply materialise at the end of the appellate process nor was it the inevitable result of the assessment of liability through the JCE doctrine. It was not something inherent to the Sierra Leone civil war – even though the prosecutorial challenges were many and varied. The failure was one of due process; a failure to implement procedural safeguards. The procedural safeguards in situ at the SCSL matched, on paper, those at the ICTY and ICTR. The summonsing of them to ensure compliance with the principle of culpability did not.
Like all other trials before the SCSL, the RUF trial commenced with an unorthodox pleading of the JCE. It sowed the seeds of the doctrinal confusion that now bedevils the jurisprudence. The Prosecution was permitted to provide notice of a nebulous campaign of violence, without particularising the nature of the Accused’s participation. The Appeals Chamber upheld a form of pleading that alleged a non-criminal objective, pursued by various criminal means. The non-criminal objective pled was a ‘common plan, purpose or design’ to ‘take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas’. The crimes alleged (acts of terror, collective punishment, unlawful killings, etc.) were pled as actions within or a reasonably foreseeable consequence of that common purpose. The pleading revealed little about the nature and scope of the alleged common purpose and even less about the way in which the JCE members were supposed to be responsible for the crimes. The de jure status of the Accused (in relation to an army of thousands of combatants) particularised as the sole nexus to thousands of crimes and deemed by the Appeals Chamber to provide sufficient notice of the nature of the Accused’s participation in this shapeless criminal campaign.
According to the Appeal Chamber’s reasoning, notice ‘to the accused does not require the objective and the means to be separately pleaded’ as long ‘as the alleged criminality of the enterprise is clear’. Since the ‘crimes charged in Counts 1through 14 were consistently alleged to be within the JCE’ this was sufficient to provide notice to the Accused. This was plainly too little and manifestly wrong. The Appeal Chamber should have insisted upon the Accused being made aware of the precise relationship between the criminal means and the non-criminal objective, as well as an outline of what it was the Accused was alleged to have done. This procedural safeguard was fundamental to the preparation of an effective defence and might have been the route to a sound application of the JCE doctrine.
The Appeals Chamber determined that the dearth of material facts pled did not matter. It did not matter, presumably, since there was no requirement that there existed a ‘necessary relationship between the objective of a common purpose and its criminal means’. It was sufficient that the ‘latter are contemplated to achieve the former’. Rather than determine whether the members of the JCE plurality worked in concert with ‘the same criminal intention’, the Appeal Chamber required only that the concerted action took place whilst each contemplated the crimes.
The introduction of contemplation into the assessment was another signpost that pointed the SCSL down the wrong path. Of course, criminal intention might reasonably be inferred from action in furtherance of criminal means. This latest manifestation of the JCE doctrine, however, also permits the criminal ‘intention’ of the Accused to be inferred from his individual action in furtherance of the non-criminal objective. It is sufficient that the Accused and their military colleagues sought to further a non-criminal objective while contemplating the crimes.
It was unsurprising that this would lead to convictions for the first two Accused, Sesay and Kallon, held responsible pursuant to this basic form of JCE for an agreement to take any actions necessary to gain and exercise power whilst contemplating crimes. It was this threshold that led to the errors in holding the third Accused, Gbao, responsible pursuant to the same basic form of JCE for crimes that were naturally foreseeable from those contemplated by the members of the plurality – even though lacking a shared intent. Remove the express protective veil of proof of intent and replace it with something much less and these are the predictable results.
At the core of both JCE I and JCE III, the accused must have the intent to commit the crime or crimes that comprise the common purpose. The criminal culpability lies in the agreement, tacit or otherwise, to a crime. Contemplation describes the case of a crime foreseen as a possible incident of the common purpose. It is the language of JCE III and not the basic form. The language of “contemplation” is far from the meaning of “intention”. In many instances there is a distinction between members who agree and those who only contemplate that crimes will occur. Contemplation is really forseeability and that is not intention, even though it may be a fact from which intent might be inferred. The very core of the rationale behind JCE liability – the requirement of a jointly held criminal purpose – has been removed. Justice Fisher’s dissenting opinion (that the majority’s approach to Gbao, “abandons the keystone of JCE liability as it exists in customary international law”) is a characterization that should be extended to all.
This new JCE is incapable of drawing the required line between the conduct of war and the furtherance of crime. Contributions to the non-criminal objective become contributions to crime with contemplation being the requisite link to all the crimes within this impractical multi headed common purpose. It is simply not possible to make the distinctions critical to avoid condemning those without criminal intent. The assessment of liability through the contemplation threshold is but a small step from the attribution of guilt to all participants in a war. It is a reversal of the burden of proof dressed up in a fancy term: rebellious war with the requisite contemplation (or, as in the case of Gbao, something much less) being sufficient to attract liability. Could anyone sensibly argue that they fought in such a war without contemplating crime?
This legal reversal corresponded with Trial Chamber I’s factual presumption in the RUF case. As stated by the Trial Chamber – and left untouched by the Appeal Chamber – “It indeed goes without saying and the Chamber so concludes that resorting to arms to secure a total redemption and using them to topple a government which the RUF characterized as corrupt necessarily implies the resolve and determination to shed blood and commit the crimes for which the Accused are indicted”.
Accordingly, the attribution of liability in the RUF case was rendered a foregone conclusion based on a new legal construction that permitted all sorts of improper inferences and presumptions of fact. It is the engagement in war and the applicable law – not evidence – that stands as the link between the Accused and the crimes. It was the presumption of guilt that left the matter beyond doubt.
Consequently, the only question that arose during the four year trial was about the extent of the Accused’s guilt. How many crimes should be attributed to the Accused? Once again, an orthodox approach was required but abandoned. The JCE assessment that should ensure that only crimes found proven beyond a reasonable doubt to have been committed pursuant to the JCE could be attributed to the Accused was jettisoned. Instead of ascertaining whether the direct perpetrator was being used by a JCE member in furtherance of the common purpose, the Trial Chamber conducted a global assessment. It announced in one paragraph that it was “satisfied that non-members who committed crimes were sufficiently closely connected to one or more members of the joint criminal enterprise acting in furtherance of the common purpose”. The Appeal Chamber declined to address this new test or pass comment on its impact upon the assessment of individual culpability. As dryly observed by Mettraux, ‘In the brave new world augured by the Sesay judgment….If there is not enough law to find the accused guilty, pour some more’.
There will be those who might be tempted to conclude that this new form of JCE and these innovative assessments are to be welcomed. They are undoubtedly an effective tool to ensure that all who participate in an unpopular war remain within easy reach of the law. What could be wrong in making criminal adjudication this straightforward?
And yet, perhaps, there is reason to pause. The Sierra Leone conflict was heinous and individuals within and associated to the RUF responsible for untold suffering. There are many – including Ex-President Taylor, Sesay, Kallon, to name but a few – who have cases to answer and stories to tell. Accordingly there is little to celebrate in law that abandons this enquiry or that can condemn a man to life imprisonment without evidence in support. This new JCE and the RUF approach will always find ‘guilt’ but it is incapable of anything more. As scholars Danner and Martinez observed, ‘Liability theories that distort the contribution of individual defendants to the crimes that ultimately occurred run the risk, over time, of producing a record of a violent period that fails to capture how and why the crimes occurred….The effectiveness of trials to the process of national reconciliation depends, to some extent on the perceived accuracy and fairness of the trials’. This is the danger of overreaching liabilities and convenient assessments and that ought not to be welcomed.
The author, Wayne Jordash, was lead counsel for Sesay.