Joint criminal enterprise (JCE) as a mode of liability in international criminal law is a concept widely upheld by international case law. It has, however, been harshly attacked by commentators, particularly with regard to what has come to be known as the ‘third category’ of the notion, that of liability based on foreseeability and the voluntary taking of the risk that a crime outside the common plan or enterprise be perpetrated. This author considers that while most criticisms are off the mark, at least two are pertinent: (i) that the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in Tadi? (1999) was wrong in indiscriminately using terminology typical of both the civil law and common law tradition, and (ii) that the foreseeability standard, being somewhat loose as a penal law category of culpability and causation, needs some qualification or precision. Generally speaking, the notion of JCE needs some tightening up. For instance, in Kvo?ka, an ICTY Trial Chamber rightly stressed that the contribution of a participant in a common criminal plan must be ‘substantial’ (the Appeals Chamber, however, disagreed to some extent in the same case). Furthermore, with specific regard to the third category of JCE, the author, after setting out the social and legal foundations of the foreseeability standard and the motivations behind its acceptance in international criminal law, suggests various ways of qualifying and straightening it out. One of them could lie in assigning to the ‘primary offender’ (i.e. the person who, in addition to committing the concerted crimes, also perpetrates a crime not part of the common plan or purpose) liability for all the crimes involved, while charging the ‘secondary offender’ with liability for a lesser crime, whenever this is legally possible. The author then suggests, contrary to a 2004 decision of the ICTY Appeals Chamber in Br?anin, that the third category of JCE may not be admissible when the crime other than that agreed upon requires special intent (this applies to genocide, persecution as a crime against humanity, and aggression). In such cases, the other participants in JCE could only be charged with aiding and abetting the crimes committed by the ‘primary offender’ if the requisite conditions for aiding and abetting do exist. The author then suggests that the view propounded in 2004 by an ICTY Trial Chamber in Br?anin is sound, namely that the general notion of JCE may not be resorted to when the physical perpetrators of the crimes charged were not part of the criminal plan or agreement, but rather committed the crimes unaware that a plan or agreement had been entered into by another group of persons. In conclusion, he contends that this qualified notion of JCE, in addition to being provided for in customary international law, does not appear to be inconsistent with a broad interpretation of the provision of the ICC Statute governing individual criminal responsibility, that is, Article 25, in particular 25(3)(d).
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