Failure to Carry the Burden of Proof: How Joint Criminal Enterprise Lost its Way at the Special Court for Sierra Leone

Abstract

This article contends that a flawed interpretation of joint criminal enterprise (JCE) embraced by the Special Court for Sierra Leone (SCSL) has set a dangerous precedent for international criminal adjudication. Breaking from a trend towards more careful application of the liability doctrine at the International Criminal Tribunal for the former Yugoslavia (ICTY), a series of JCE decisions from the Armed Forces Revolutionary Council, Revolutionary United Front, and Charles Taylor cases betray profound doctrinal confusion and overreaching at the Special Court. The problem began with indictments that failed to satisfy the pleading requirements for a common criminal purpose at the core of each alleged JCE. Since this defect in the JCE pleadings has not been recognized as such by the SCSL Appeals Chamber, the Court has struggled to properly assess the individual liability of each accused, with negative consequences for the clarity and correctness of the JCE jurisprudence. Most recently, in Sesay, Kallon and Gbao, Majorities in the Trial and Appeals Chambers entered and upheld convictions based on an interpretation of ‘common purpose’ so flawed that it detached the basic and extended forms of JCE from the core mens rea that defines them, thereby expanding the doctrine from a legitimate liability theory into a vehicle for guilt by association. This article offers a critical assessment of the SCSL’s JCE jurisprudence to date, framing the Court’s experience as a concrete cautionary tale of the doctrine misapplied. JCE fails to be a useful tool for assessing individual liability, unless its basic elements are clearly pled in the indictment and rigorously applied by judges. The authors recommend that future international criminal proceedings abandon the SCSL’s misconceived approach, and instead take care to adhere to the procedural safeguards articulated in recent ICTY jurisprudence - ensuring that the JCE is pled with an unambiguously criminal common purpose, and that the trier of fact strictly construes each legal element of the doctrine in accordance with the culpability principle, the principle of legality and the fair trial rights of the accused.