Conspiracy/Joint Criminal Enterprise

Abstract

Conspiracy and joint criminal enterprise (JCE) are legal expressions of responsibility models that seek to hold individuals criminally liable for organizational or collective action. They have in common the existence of a criminal agreement through which the parties’ intent becomes perceptible. JCE is a mode of participation developed through international case law. Conspiracy, however, is an inchoate crime of common law origin, and while it was formerly unknown or accepted to a very limited extent in civil law systems, it is now used in many jurisdictions for the prosecution of crimes such as terrorism. The separate (common law) offense of conspiracy is defined as an agreement between two or more individuals to commit a crime. It is punished independently, meaning it is punished even if the planned crime is never perpetrated. In international law, the concept of conspiracy originated in the aftermath of World War II. Article 6(a) of the Charter of the International Military Tribunal (IMT) in Nuremberg criminalized the conspiracy to commit crimes against peace (there was no similar provision in relation to war crimes and crimes against humanity). The final paragraph of Article 6 also included conspiracy as a form of participation, making the concept applicable as a mode of liability (as opposed to a separate offense as with crimes against peace) to all categories of crimes in Article 6. The Charter of the International Military Tribunal for the Far East (IMTFE) in Tokyo replicated the IMT’s provisions. In contemporary international criminal law, the inchoate crime of conspiracy can be found in Article 3(b) of the 1948 Genocide Convention as well as in the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), but only in relation to genocide. JCE, a type of surrogate conspiracy but strictly a mode of liability, was developed by the ICTY Appeals Chamber (AC) in Prosecutor v. Duško Tadić, cited under Judicial Decisions. The ICTY Statute does not set out the objective and subjective elements of what the AC termed JCE, so the judges looked to customary law. They distinguished three types of JCE, all of which share common objective elements but differ as to the subjective elements. Type three JCE, where the crimes are committed by members of the group outside its common purpose but as foreseeable consequences of it, is the judgment’s most controversial creation (see also Third Category Joint Criminal Enterprise).