Special Court for Sierra Leone Rejects Joint Criminal Enterprise

Charles Taylor’s chances of an acquittal just increased significantly, a consequence of the first verdict of the Special Court for Sierra Leone. In the ‘AFRC Trial’ (Prosecutor v. Brima, Kamara and Kanu), Trial Chamber II ruled that the joint criminal enterprise (known to insiders as JCE) alleged by the Prosecutor was not one involving a crime within the jurisdiction of the Court, dismissing many charges that depended upon such a theory. Similar allegations underpin the indictment of Charles Taylor.

The indictment in Brima, Kamara and Kanu had alleged that they ‘shared a common plan, purpose or design (joint criminal enterprise) which was to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.’ The indictment also said that the joint criminal enterprise involved gaining and exercising control over the population of Sierra Leone in order to prevent or minimize resistance to their geographic control, and to use members of the population to provide support to the members of the joint criminal enterprise.’

But, said the Trial Chamber, the ‘common purpose’ pleaded in the indictment is not a crime within the Special Court’s jurisdiction. The Trial Chamber referred to an earlier ruling of the Appeals Chamber, which held that ‘there is no rule against rebellion in international law’. (The Prosecutor can’t say he wasn’t warned. The same criticism of his approach to JCE appeared in my book, The UN International Criminal Tribunals, published more than a year ago by Cambridge University Press.)

The joint criminal enterprise theory of liability is not set out explicitly in the Statute of the Special Court. Its existence is the result of a rather liberal interpretation of the text. The theory originates in a judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. It is not without controversy, especially because the so-called third category of joint criminal enterprise, or JCE 3, allows the conviction of an individual for crimes committed by those who shared the common illegal purpose, even crimes that the individual did not intend.

Some critics have said that JCE means ‘just convict everyone’. Recent judgments of the ICTY Appeals Chamber reveal a lingering unease with the theory, at least among some of the judges.

JCE has certainly proven to be a very potent tool of the prosecution at the International Criminal Tribunal for the former Yugoslavia, and promised to do the same at the Special Court for Sierra Leone. But at the Yugoslavia Tribunal, prosecutors took care to allege a common purpose or joint criminal enterprise to commit ethnic cleansing, which is a form of crime against humanity and clearly a crime within the jurisdiction of the institution. Not so for the Special Court, whose prosecution team rather inexpertly alleged a joint criminal enterprise to commit something which is not a crime.

In the AFRC case, this was not fatal to the prosecution case, because it was not difficult to prove that the accused had actually committed or ordered the commission of atrocities in the capital Freetown, and in the Bombali region. They were field commanders who personally engaged in violent acts. But much of the prosecution case was rejected because with respect to atrocities committed elsewhere in the country, the charges relied upon the theory of joint criminal enterprise.

Unlike the AFRC accused, Taylor never actually set foot in Sierra Leone during the conflict and did not appear to have troops there directly under his command when the worst atrocities were committed. His involvement was much less direct than that of the AFRC leaders. Thus, the joint criminal enterprise theory is quite central to the prosecution theory in the case against Taylor. Its rejection in this first judgment potentially has devastating consequences for the prosecution.

Prof. William Schabas
National University of Ireland, Galway