Criminal Responsibility
The Kosovo Specialist Chambers can only hold accountable individuals alleged to have planned, instigated, ordered, committed, or otherwise aided in war crimes or crimes against humanity within the time frame and geographical scope of the Court’s mandate. This also includes superiors who allegedly failed to prevent or punish perpetrators who were the subordinates and who allegedly committed the crimes within the Kosovo Specialist Chambers.
Modes of liability
Criminal responsibility in international criminal law arises in different situations. It can be direct perpetration, the physical carrying out of the prohibited conduct, accompanied by the requisite mental element for the crime, or indirect perpetration, where the accused used another person to commit a crime. Responsibility can also arise by omission,where the person was under a duty to act and had the ability to do so but did not, or by failure to prevent or punish the criminal activities of one’s subordinates (superior responsibility).
International criminal law has no agreed scale of penalties for situations where two or more persons contributed to a crime differently. However, the general trend is that perpetration is at the high end of sentencing range, while forms of accomplice liability (such as aiding and abetting) are at the lower end. Depending on such roles in the commission of international crimes, criminal responsibility in ICL can be grouped in the following way:
Joint Criminal Enterprise (JCE)
Joint criminal enterprise (JCE) is a concept used in international criminal law to establish the criminal responsibility of individuals participating in a common plan, agreement, or enterprise to commit crimes. Under JCE, individuals can be held accountable for the crimes committed by others within the enterprise if those crimes were a foreseeable consequence of the common plan and if they willingly participated in criminal activities.
Some differences and similarities between JCE and other modes of liability can be drawn at this point. The most notable areas of overlap are co-perpetration and superior responsibility. Unlike co-perpetration, where shared criminal intent is unnecessary, JCE requires a collective agreement or common purpose. On the other hand, while both superior responsibility and JCE address the responsibility of individuals for crimes committed by others, JCE does not require a superior-subordinate relationship.
JCE is an important concept in international criminal law today, but the courts have taken somewhat different approaches to its application. ICTY took a broad one, ensuring that those who were part of a criminal enterprise could be held accountable for all the crimes committed by the group. On the other hand, the Rome Statute of the International Criminal Court relies on the theory of the “control of the crime”. It focuses on objective elements, while JCE focuses on subjective ones. Therefore, the Court has been more cautious and sought to avoid the potential for holding individuals accountable for crimes they did not expressly agree to or foresee.
There are three forms of JCE:
JCE I, where all co-defendants who act pursuant to a common design possess the same intent to commit the crime. This common intent includes the specific intent required for the crime. All participants are treated as criminally responsible if they contributed significantly to the commission of a crime. Such contribution can include various means of supporting the members of the JCE to commit the crime. An example is JCE to murder, where all participants can be convicted even if one shot and killed the victim.
JCE II is a variant of JCE I where the person is responsible for participating in a criminal design implemented in an institution such as internment, detention or concentration camp. The mental element required is knowledge of the criminal system and the intent to further its criminal purpose. Like with JCE I, criminal responsibility arises if there is a significant contribution to the joint criminal enterprise. To avoid criminal responsibility, the person should have asked to be relieved of their duties that contribute to the commission of crimes.
JCE III is the most controversial form, as it extends responsibility to where one or more members of JCE I or II commit an additional crime that was not part of the common criminal design. However, this category only arises if the participant who did not have the intent to commit the ‘incidental’ offence was nevertheless in a position to foresee its commission and willingly took that risk by continuing to participate in the criminal enterprise. Some have argued that the third category of joint criminal enterprise places the ‘secondary offender’ without an intent to kill on an equal footing with the ‘primary offender’ who deliberately brought about the victim’s death.
The controversy behind JCE III: To Custom or not to Custom?
KSC operates under a hybrid model with international judges and prosecutors based in The Hague, but it follows the Kosovar court system. However, the law on the Specialist Chambers and Specialist Prosecutor’s Office (KSC Statute) gives customary international law superiority over domestic law. Therefore, the basis for individual criminal responsibility concerning war crimes and crimes against humanity under international law is not found in Kosovo criminal laws in force during 1998-2000 but in article 16(1) of the KSC Statute.
The controversy begins with the similarity between Article 16(1) of the KSC Statute and Article 7(1) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute). In Prosecutor v. Tadić, the latter introduced JCE III, where a person was aware that the group’s actions were most likely to lead to that result. Although they did not intend to bring such an outcome, they nevertheless willingly took that risk. Interestingly, the ICTY Appeals Chamber did not follow the same test in the Radovan Karadžić.
Another point is that JCE III breaches the principle of culpability, which guarantees that individuals cannot be held criminally liable for an act if they lack the necessary intent or culpable mental state required for the commission of the crime.
Should the KSC embrace the widely constructed liability of the JCE III? Many argue against this idea. Their reasoning points to liability through foresight not having customary status and to the rejection of JCE III by the Special Tribunal for Lebanon, the Extraordinary Chambers of the Court of Cambodia, and the Rome Statute of the International Criminal Court. However, the KSC is neither bound by other courts’ decisions nor burdened by its own jurisprudence and must find its own interpretation of Article 16(1).
On March 2022, the defence for Hashim Thaçi submitted a Motion opposing the Pre-Trial Judge’s interpretation and challenging the applicability of JCE III. In the Motion, the defence argues that this mode of liability: a) was not part of customary international law during the indictment period, b) was not accessible or foreseeable to the accused during the indictment period, and c) that it is not a mode of responsibility prescribed by Article 16(1) of the KSC Statute. In its response, the Court of Appeal disagreed and pointed to the lack of evidence to support these claims. The Court reminded that it is not a harsh or new principle that those who participate in a joint criminal enterprise and contribute to the commission of a crime can be held responsible, even if they did not directly commit the act.
