Articles on JCE: The Requirement of an ‘Express Agreement’ for Joint Criminal Enterprise Liability

The Requirement of an ‘Express Agreement’ for Joint Criminal Enterprise Liability

Katrina Gustafson *

Abstract
The mode of liability known as joint criminal enterprise (JCE) has emerged in the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) as a means of assigning criminal liability to individuals for activities carried out by a collective. As a result, the doctrine must be carefully defined so as not to allow it to extend a defendant's liability beyond the appropriate limits of individual criminal responsibility. In this regard, a recent ICTY Trial Chamber decision in Branin held that, where a defendant is not alleged to have participated in the physical perpetration of the crimes charged but to have contributed in some other way to the commission of the crimes by a group, the prosecution must demonstrate that the defendant entered into an express agreement with the physical perpetrators to commit the crimes charged. The author argues that this ‘express agreement requirement’ is both conceptually unsound and practically unhelpful. Conceptually, it would be inconsistent with core principles of JCE liability to require an express agreement between a defendant and the physical perpetrators of crimes, at least in circumstances in which it is alleged that there existed a structure of two or more overlapping JCEs. Moreover, because this structure allows the accused and the physical perpetrators to be operating in two separate JCEs, they need not even share a common criminal purpose. On a practical level, arguably in a ‘system-criminality’ context such as the one that developed in the former Yugoslavia during the time period in question, the organizers of criminal activity are unlikely to enter into express criminal agreements with those who physically carry out crimes, because existing organized hierarchies provide much more efficient mechanisms by which leaders are able to ensure the realization of their criminal plans.