1. Introduction

The doctrine of Joint Criminal Enterprise (JCE) (Common Purpose Doctrine) provides that where a pre-existing plan to commit core international crimes exists, or where members of a group are acting with a common criminal purpose, all those who knowingly participate in, and contribute to, the realization of this purpose may be held individually criminally responsible. In accordance with this doctrine, a person can be convicted for crimes which he not only committed/participated in with intent, but also for crimes which he did not intend nor actually personally commit, but which were a ‘natural and foreseeable consequence’ of the common purpose or the purpose of the joint criminal enterprise (Damgaard, 2008).

The doctrine of JCE which imposes individual criminal responsibility on accused for their participation in a group’s common criminal plan rise to prominence in the ICTY Appeal Chamber decision, Prosecutor v. Tadic. Since Tadic, there has been a general reluctance by international ad hoc tribunals to review the legal foundation of JCE (Marsh & Ramsden, 2011).

Moreover, according to the Yugoslavia Tribunal, the notion of JCE encompasses three different categories: the basic form, the systematic form and the extended form while the actus reus can be the same for each of the three categories, the Appeals Chamber has declared that the three categories differ in respect of the mens rea (Werle,2007).

The actus reus elements common to all three categories, JCE I, JCE II, JCE III, are: (a) a plurality of persons; (b) the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (c) participation of the accused in the common design. The mens rea element differs for each category of JCE. For JCE I, the accused must share the intent to commit a certain crime. For JCE II, the accused must know of the system of ill-treatment and intend to further it. For JCE III, the accused must intend to participate in and further the criminal purpose of the group. While, he will be liable for a crime other than the one envisaged in the common plan if the crime was a foreseeable consequence of the common plan and the accused willingly took that risk (Jain, 2014).  The doctrine suffers three conceptual deficiencies: (1) the mistaken attribution of criminal liability for contributors who do not intend to further the criminal purpose of the enterprise, (2) the imposition of criminal liability for the foreseeability acts of one’s co-perpetrators and (3) the mistaken claim that all members of a joint enterprise are equally culpable for the actions of its members (Ohlin, 2007).

2. Literature review

The literature reviewed for the current study is presented thematically. The existing literature on the subject of JCE had dealt with a quiet range of issues. The dissertation will focus mainly on three main themes: Concept of JCE, Constituents of Criminal responsibility within the JCE doctrine along with the contextual interpretation of the mental element under Art 30 of the Rome Statute.

However, scholars have propounded different viewpoints on the doctrine and have suggested alternative doctrines which are more suitable for the criminal responsibility on collective criminality. One scholar has suggested functional perpetration. The concept of functional perpetration offers several interesting opportunities to address the responsibility of people involved in system criminality. It recognizes that functionaries and their contributions are interrelated and may thus help obtain the whole picture of system criminality while suggests by the scholars to be perfectly capable of serving a tool in the hands of courts to make such refined distinctions. However, several scholars argue and defend that the word commission in Article 25 of the Rome Statute, which has interpreted and applied extensively, includes the joint criminal enterprise mode of criminal responsibility too.

Meanwhile, the Appeals Chamber claims of not creating any new basis of liability when articulating and setting out the joint criminal enterprise doctrine, but an individual’s participation in a joint criminal enterprise fell within the scope of having ‘committed’ a crime and thereby within the purview of Art7(1) itself states that ‘… whoever contributes to the commission of crimes by the group of persons or some member of the group, in the execution of a common criminal purpose, may be held criminally liable…(Powels, 2004)’.

Furthermore, it is not considered sufficiently ‘serious’ to reflect the involvement and participation of the senior's leaders in the crime due to its contentious nature. Therefore, it is notoriously difficult to find the right mechanisms to bring such high-level perpetrators to justice and, even such difficulties be overcome, framing the criminal responsibility of these leaders within the modes of participation recognized in domestic criminal law remains highly problematic (Powells,2011)

However, some scholars have suggested the alternative to be utilized instead of JCE, e.g. functional perpetration (Wilt, 2007), indirect perpetration (Manacorda & Meloni, 2011), co-perpetration (Manacorda & Meloni, 2011), control over the crime (Wilt, 2007) , etc.

JCE as a mode of liability in international criminal law is a concept widely upheld by international case law. However, it has been harshly attacked by commentators particularly what comes to be known as the ‘third category’ of the notion, that of liability based on foreseeability and the voluntary taking of the risk that a crime outside the common plan or enterprise be perpetrated (Wilt, 2007).

Some scholars criticize the doctrine as the violative of the principle of culpability. From the perspective of the principle of individual guilt, criminal responsibility for mere membership of an organization was equally questionable. Therefore, the first question which arises was whether the doctrine could be used to establish the criminal responsibility of the high official (political and military leaders) for the commission of the crime considering the physical and mental distance between them? (Wilt, 2007). Hence, a rather vague expression such as ‘intention to further the criminal activities or purpose of the group’ arguably falls short of the requirement, stemming from the principle of legality, that the elements of the crime should be drafted as precisely as possible (Wilt, 2007). Art 25(3) envisions a large range of personal contributions to the commission of a crime.

Which includes three forms of commission by an individual where the single individual can commit one of the crimes contemplated in the Statute: (i) as agent, author or principal; (ii) as accomplice (contributor) alongside one or more agents; (iii) as participant in at least the attempted commission of a crime by a group sharing an action plan and also regulates as a matter of fact, other ways in which a crime can materialize (Militello, 2007). Article 25(1) provides that the court shall have jurisdiction over natural persons, not over states or organizations. Paragraph 2 of Article 25 reiterates the principle of individual criminal responsibility. Paragraph 3 the provision distinguishes various modes of individual responsibility. Sections 3(a)-(d) is certainly the core of Article 25. Commission, ordering, instigating and aiding and abetting are confirmed as modes of participation. The same holds true for the joint commission, although this form was never explicitly mentioned in former statutes or conventions. Also, the ICC Statute also includes the concept of perpetration-by-means and contributions to a group crime (Werle, 2007).

Furthermore, Article 25 (3)(a)-(d) ICC Statute is, therefore, best construed as a differentiation model with four levels of participation: at the top, commission as the mode of participation that warrants the highest degree of individual responsibility; on the second level, the different forms of instigation and ordering as accessory liability for those who prompt others to commit crimes under international law; on the third level, assisting a crime, for ‘simple’ accessories; and finally, contribution to group crime, as the weakest mode of participation on the fourth level (Werle, 2007).

3. Object and Scope of the Proposed Research

  The significance and relevance of the research will be of threefold:

●      To find out is there any place or justification for the joint criminal enterprise under Article 25 of the Rome Statute.

●      To find out whether the constituents of the joint criminal enterprise are present while justifying the criminal responsibility of an individual.

●      To find out the harmonizing factor of an extended form of the joint criminal enterprise within the Article 30 of the Rome Statute.

4. Research Questions

 The proposed research questions intended to be answered by this research:

1.     What constitutes the motion of joint criminal enterprise under international law and whether it is inbuilt within the Rome Statute?

2.     Whether the three forms of joint criminal enterprise adequately determine the varying degrees of responsibility in view of different mental elements?

3.     Whether the joint criminal enterprise contradicts the limits of Art 30 of the Rome Statute?

5. Joint Criminal Enterprise

5.1.  Introduction

International crimes such as genocide, crimes against humanity, and war crimes which involves the commission of mass atrocities committed by individuals acting in groups. However, they may be regular or irregular military units, rebels operating under the control of the government or outside the control of the government, or any other armed groups of individuals furthering a state policy while acting jointly (Bogdan, 2006). Therefore, the international criminal tribunals refrain themselves from imposing the criminal liability on the group; instead, they look for to individualize the criminal responsibility related to the commission of the crime (Bogdan, 2006) Therefore, the main focus and aim of the international trials are to reasonably and equitably allocate the criminal liability to individuals acted in groups for the perpetration of prohibited conduct under international criminal law (Bogdan, 2006).

Further, imposing criminal responsibility on an individual while violating or committing any criminal conduct is included in all the domestic criminal justice system of the world. Whereas, individual criminal responsibility recognized for the first time for international crimes in the Nuremberg and Tokyo prosecutions after the Second World War (Bogdan, 2006). Therefore, both the tribunal affirmed the concept in their Charters and accepted it in their judgments (Bogdan, 2006). Also, the International Tribunal for the Former Yugoslavia and International Tribunal for Rwanda placed the concept in their Statutes, and finally, the Rome Statute provides for individual criminal responsibility in details (Bogdan, 2006).

After the Nuremberg trials, there was no other international tribunal until the ICTY, and the ICTR establish as a subsidiary organ of the Security Council for imposing criminal liability for the mass atrocities and violence committed in the former Yugoslavia and Rwanda, respectively (Stephens,2013). The Dusko Tadic case first introduced joint criminal enterprise doctrine tried by ICTR (Stephens,2013).

Dusko Tadic was accused of the killing of five men from the village of Jaskici in Bosnia while there was no direct evidence available that the accused personally killed any of them (Bogdan,2006). Meanwhile, according to post world war II trials before the International Military Tribunal at Nuremberg (Nuremberg Tribunals) and the International Military Tribunal for the Far East (Tokyo Tribunal), the Charters of these two Tribunals do not expressly provide any provision regarding joint criminal enterprise but it provides for individual criminal responsibility under ICTY and ICTR under Article 7(1) and Article 6(1) respectively. Moreover, Article 7(1) of the ICTY provides under the heading of individual criminal responsibility as “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, perpetration or execution of a crime referred to in article 2 to 5 of the present Statute , shall be individually responsible for the crime.” (Statute of the ICTY, art. 7(1), United Nations, 1993). Whereas, Article 6(1) of ICTR states for individual criminal responsibility “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, perpetration or execution of a crime referred to in Article 2 to 4 of the present Statute, shall be individually responsible for the crime. (Statute of the ICTY, art. 7(1), United Nations, 1993)”. Therefore, the Appeals Chamber insists that it covers not only the physical perpetrators but all those who person responsible for the serious violation of international humanitarian law in the former Yugoslavia whereas the ICTR takes the stand that the doctrine of JCE has become a customary international law and the reliance on the doctrine has grown since ICTY cases (Damgaar, 2008). Finally, the ICC Statute is the first international instrument which deals with the doctrine of JCE in detail, and it expressly provides for the inclusion of doctrine under Article 25(3) (d) of the Statute as “3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:…

d)     In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i)             Be made with the aim of furthering the criminal activity or criminal purpose of the group where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii)            Be made with the knowledge of the intention of the group to commit the crime (Damgaar, 2008);

An individual is not only criminally responsible for the commission of a crime when he physically commits the crime, but he can be held responsible for the commission of a crime where he engages in any other form of criminal behavior or conduct (Antonio, 2008). However, according to the principle of personal culpability a person cannot be held responsible for any crime where he/she did not participate personally in the commission of a crime or he/she may participate (involve)  in some other way (Antonio, 2008). Furthermore, the Tadic Appeal Judgment lays down two main notions by personal culpability. First, nobody may be held accountable for the commission of criminal conduct perpetrated by others; second, a person may be held responsible if he somehow takes part or involved in the perpetration of the crime (Antonio, 2008).

Meanwhile, it defines it as follows: “in sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (about each of the three categories of cases) are as follows:

i.                A plurality of persons. They need not be organized in the military, political or administrative structure

ii.              The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute.

iii.             Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. By contrast, the mens rea element differs according to the category of common design under consideration (Haan, 2005)

However, the joint criminal enterprise has spelled out by the ICTY as a model of criminal responsibility, and the doctrine has used by different international criminal courts to the extent that it regarded as a ‘darling notion’ by the Prosecution (Cassese, 2007). Further, the doctrine plays a crucial role in the world community as compared to the domestic level. For the world community, international crimes such as war crimes, crimes against humanity, genocide, torture, and terrorism have common features for example, these crimes are committed by, plurality of persons, expression of a collective criminality, paramilitary units or commission by government officials in unison for achieving a common policy where the actual contribution of every individual is difficult to be determined along with the difficulty of producing the evidence of every individual for the criminal conduct or the role played by each one of them (Cassese, 2007). Generally, the origin and history of the joint criminal enterprise can be traced to the events of the Second World War (Damgaard, 2008).  The reason behind the doctrine was that no perpetrator should go unpunished; hence, to find a legal solution for punishing the Nazi perpetrators.

Meanwhile, a proposal was suggested by Colonel Murray C.Bernays from the American Department of War, in his memorandum entitled ‘ Trial of European War Criminals,’ deals with pre-war as well as wartime atrocities (Van Sliedregt,2012) which suggests two doctrines namely, the doctrine of conspiracy and doctrine of membership in the criminal organization (Van Sliedregt,2012). Where the conspiracy was intended to capture and punish the major war criminals, on the other hand, the membership in the criminal organization was intended to catch the ‘little fish. (Damgaard, 2008)’ Some scholars have comparatively described the doctrine with other terminologies to testify the outcome and efficiency of the doctrine. According to Neha Jain, the JCE doctrine deals and resolves the complex cases while comparing the same with co-perpetration.

Further, she explains the Anglo-American complicity law doctrine where the foundation of the complicity based on the actus reus. Complicity doctrine explains that the perpetrators are the one who physically and materially causes the crime which creates doubt in case of group crime. Notwithstanding, no one is identifiable as the sole perpetrator where all the participants were equally supportive of, concerned in the commission of the crime so the distinction between the principal and accessory is irrelevant and the members are all called as ‘ parties to the joint enterprise. (Damgaard, 2008)’

According to the Appeals Chamber in Dusko Tadic case emphasized that, the concept of JCE has three distinct categories (Jain, 2014). Three categories of JCE will be comprehensively discussed below.

5.2.  Variants of JCE (Three Categories of JCE)

Joint Criminal Enterprise (JCE) was first introduced by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Tadic judgment where it divided it into three categories (Jain, 2014). The three variants of the JCE have the same and common element of actus reus (physical element) in all its three types while the mens rea (mental element) is different for each of these categories (Jain, 2014). These types are named as a basic form, the systemic form and the extended form by some scholars (Marsh & Ramsden, 2011). The commonality of actus reus in all the three variants is (i) the plurality of persons, (ii) the existence of a common plan, design or purpose and (iii) membership or participation of the accused in the concerted plan (Haan, 2005). For the sake of better understanding, each category of JCE will be addressed separately while some elements are common to them.

a)     The basic form (JCE I) : According to the first category, all the participants have shared intention while pursuing the common design which make them co-perpetrators to each other nevertheless the accused voluntarily participates in the common design, its immaterial who commit the actual offence, for example where a plurality of persons agree for killing of a person while every member perform a different role in the group but they have the intention to kill which make them all liable for murder (Damgaard, 2005).

                           I.         The objective elements of the first category:  the basic form of JCE consist of three ingredients to form the objective element of crime namely (1) plurality of persons, (2) existence of a common plan, (3) participation of accused in the common plan to form a joint criminal enterprise (Haan, 2005).

(1)   Plurality of persons: according to this requirement at least two individuals should be present for the commission of offense. It is not required that they must be military, politically or due to the administration hierarchy be organized hence, the spontaneously gathering of some persons for the commission of a crime for example mob violence cases will satisfy this criteria of plurality of persons (Haan, 2005).

(2)   The existence of a common plan: this ingredient has attracted conflicting views from scholars. According to V. Haan, it’s a kind of understanding and arrangement among the participants which amount to an agreement for the commission of one specific or series of crimes (Haan, 2005) while Katrin Gustafson claims that the express agreement is neither conceptually sound nor practically helpful (Gustafson, 2007). However, the Trial Chamber in Simic case emphasized that the exact time when the common plan was envisaged is irrelevant while it will be sufficient to show that during the commission of the crime the common plan existed (Haan, 2005). Moreover, the ICTY Trial Chamber decision in Brdanin case ruled out that, the prosecutor must prove that if the defendant did not take part in the commission of crime personally but he has contributed in some other way to the commission of the crime. hence, the prosecutor must prove and show that he has entered into an express agreement with the actual perpetrators for the commission of the crime (Gustafson, 2007). Whereas, Katrina Gustafson criticize the imposition and requirement of an express agreement by the trial chamber on the Brdanin case by the tribunal.

She further goes, the crucial requirement for the JCE liability is, in the context of system and collective criminality, the high officials and rankers are not committing the crime physically but they should remain responsible for the crimes if not as perpetrators it could bear the responsibility as principal perpetrators or as the organizers for its commission. Though, the high officials of criminal activity are unlikely to enter into any express criminal agreement with the actual perpetrators because the official hierarchy and position provide them more efficient mechanism through which the could ensure the realization of their criminal plans (Gustafson, 2007).

(3)   Participation of accused in the common plan: the accused needs to take an effective part in the commission of a crime in anyhow. Although, any role played by him must have the effect of furthering the common purose that  may vary in different degrees (Haan, 2005). Nevertheless, it may be in the form of assistance in, contribution to, or execution of the common purpose (Gustafson, 2007).

              II.         The subjective elements of the first category: according to the judgment of the Appeals Chamber in Tadic case the first category of JCE has the shared intent, awareness, and knowledge of the crime and willingness to further the crime by the accused. Each one of the elements discussed as follow:

(1)   Knowledge and awareness of the crime and participation of the accused: the accused must voluntarily join the group while he has the knowledge and awareness of the crime being committed by the group or the criminal character of the group while voluntarily joining the group it is immaterial whether the accused knows every criminal activity of the group or have knowledge about some of their criminal acts while pursuing the common purpose (Haan, 2005).

(2)   Intent: the accused must have a clear intention for the commission of the crime. He has the result in mind while committing the crime. For example, he should have a specific intention and plan in his mind while pursuing and participating in the criminal group (Haan, 2005).

(3)   Shared intent: all the participants must share their common intention for the criminal act while the word ‘shared’ did not comprehensively explained and remain unclear.

b)     Second category or the Systemic form of JCE (JCE II):  while this category is mostly similar to the first category which includes the concentration camp cases where the crimes were committed by the military or administrative officials by pursuing a common plan or policy meanwhile, the accused held some authority or a position in the hierarchical institutional framework to pursue the common policy by mistreating the camp prisoners or killing the detainees (Damgaard, 2008). According to Luke Marsh and M.Ramsden, the systemic form of JCEII is the sub-group of the basic form of JCEI (Marsh & Michael, 2011). Whereas, Antonio Cassese called this category “liability for participation in an institutionalize common criminal plan” (Cassese, 2007) where he claims that the prisoners of camp were mistreated, tortured in the camp so the responsibility should not be imposed on the top officials and heads of the camp, but all those should be held responsible who perform whatsoever administrative function for the achieving of the common goal (Cassese, 2007). All the participants bear the liability while they were aware of the criminal activity of the administration and willingly further the same while the role they played is immaterial as they provide a cog in the killing machinery and connect the chain of mass atrocities (Cassese, 2007). While any function or task of any consequence would in the structural criminal framework activate their responsibility for the crimes which committed or will be committing (Cassese, 2007). The second category of JCE has the same objective, and subjective elements of the basic form with a slight difference highlighted below

                        I.         The objective elements: the objective elements of the second category are similar to the first category with a slight varying degree which is (1) plurality of persons, (2) the existence of the common plan and (3) participation of the accused in a joint criminal enterprise. Each element is explained below

1)     A plurality of persons: this ingredient is the same as the first category which has a similar and identical characteristic of the first category.

2)     The existence of a “system of ill-treatment”: while the slight difference between the first and second categories is on the basis of the existence of the system of ill-treatment of the detainees and prisoners, on the first category it applies to all kinds of arrangements among the members for the commission of the crime in whatsoever manner it may be, but in the second category, is based on the institutionalized hierarchical structure which talks about the system of repression (Haan, 2005). According to Ciara Damgaard, For the establishment of the responsibility on accused’s part three requirements are need to be existed (i) the existence of an organized system of ill-treatment of the detainees, (ii) the accused’s awareness of the system of ill-treatment or repression, and (iii) the active participation of the accused in the furthering of such system or to achieve the realization to the common purpose (Damgaard, 2008). Meanwhile, V.Haan insisted that such a system (ill-treatment) has two characteristics to be recognized, first, the existence of an institution such as a prison camp or an organization of a comparable structure, second, the violation and repression toward the inmates on the basis of a large scale and systematic nature which explicitly perceivable that such an organization works and operated for criminal purposes only (Haan, 2005).

3)     The participation: according to the second category the participation in the criminal group means that the accused has a direct or a significant contribution to the system for the proper functioning of the enterprise and smoothly achieving the goal of the institution (Haan, 2005). There is a slight difference between the first and second category of JCE for the element of participation of the accused in the group. The threshold of participating in the systemic JCE is higher than that of the non-systemic JCE responsibility on the grounds of direct and significant contribution whereas for the first one the membership was sufficient to be responsible without the role played by the accused while some argues that the degree of participation will definitely differ on the parts of each accused which must not be criminal whereas it may take the form of assistance in, or contribution to, the execution of the common plan or purpose of the group so it would be sufficient that the accused has taken part for the furthering or achieving of the common goal of the institution.

Furthermore, according to Kvocka judgment, the substantial contribution could be made through acts or omissions of the duties which could be perceived by way of failure to complain or protest or approval of silence about the crimes and repressions.

              II.         The subject elements of the second category: According to the Tadic judgment, the mens rea elements of the second category, which relates to the system of ill-treatment such as concentration camps or detention camps, the accused must have personal knowledge of the system of ill-treatment as well as the intent to further such common purpose of the group while he holds some position or authority in the hierarchical structure of the organization. Whereas for the first category the subjective elements could be inferred from the circumstance of the specific case on the ground of ‘shared intent’ while in case of the second category of JCE it could not be necessary to be established on case by case basis but it may automatically inferred from the assumption that a person who met the objective requirements of the JCE for example which contributed significantly to the establishment or maintenance of the prison camp or criminal institution, also acted with knowledge of criminal character of the institution and will be liable for all the crimes which would happen or committed during the time he worked or employed there.

                     III.         The extended or third form of JCE (JCE III): it is the most controversial variant of the JCE doctrine knowing the fact that the accused did not know intend nor plays in the crime with which he is charged. JCE III is different from the first two categories (JCE I, II). According to JCE III, the accused pursued one course of conduct, but where one of the perpetrators commits an act which is outside of the common purpose, but it was a natural and foreseeable consequence of the act committed. And the accused willingly took that risk while having the knowledge of the act that it will be certain to occur. For example, having the shared intent to forcibly remove members of one ethnicity from their place to another which will cause the death of one or more members though there was no intention of murder to be part of the common plan, but the forcible removal of members on gunpoint was nevertheless foreseeable the deaths might be the result where the responsibility may attribute to all the members in the group (Damgaard, 2005). Meanwhile, V.Haan argues that the extended form of JCE mode of liability only stretches and broaden the responsibility of the members of the criminal group to the crimes which are beyond the common purpose but a natural and foreseeable consequence of the affecting the enterprise (Haan, 2005). The additional requirements were discussed as follow: 

a)     The additional objective element: According to JCE III the additional element of natural and foreseeable consequence would be imposed on the members of the group on the condition of having a specific state of mind toward the crimes they are committing the so-called dolus eventualis is required some called it ‘advertent recklessness.’ (Marsh & Ramsden, 2011) Whereas, some scholars argue that a state of mind is required for the commission of the crime while he not intend on bringing out a specific result but no doubt having the knowledge and awareness of the result that would be occurred due to the group actions still the accused willingly took that risk and further the common purpose of the group (Damgaard, 2008). However, the Tadic judgment did not define the term ‘state of mind’ which remains ambiguous (Haan, 2005). in addition, it is worth mentioning that JCE III is still a controversial debate between the criminal tribunals and scholars on the ground of imputation of responsibility for the crimes of genocide or special intent crimes. (Haan, 2005) Whereas, the one hand, some scholars argue that the state of mind needs a dolus specialis (the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group) for specific intent crimes such as genocide, on the other hand, some argue that the dolus eventualis is enough for them to be responsible for the commission of the crimes (Bantekas & Nash, 2009). For example, a person who contributed to a specific intent crime such as genocide but who did not share the required intent could not be held responsible as a participant in a joint criminal enterprise on the ground of extended form of JCE III, but it could be responsible as an aider and abettor only (Haan, 2005).

b)     The additional objective element: the additional objective elements of JCE III are the acts and crimes committed by any one of the participants of the group which is beyond the common purpose which was nevertheless a natural and foreseeable consequence of the execution of the common design (Haan, 2005). Meanwhile, there is no distinction made or established between the crimes fell within the scope from those fell outside or beyond the scope of joint criminal enterprise although some criteria were highlighted by judges while deciding the crimes as part of common enterprise such as, crimes committed without discipline and not according to a specific pattern, the armed unit under the command of accused was not involved in the crimes, crimes happened beyond the territory of accused’s authority etc (Haan, 2005). However, the distinctive character of the extended form of JCE is the ‘fault element,’ which, subject to certain conditions, stretches criminal liability to be extended to crimes other than those fundamentally agreed upon in the plan or design (Schabas & Bernaz, 2011). For better understanding, the summary of all three types of JCE has drawn in the following Table 1.

6.     Joint Criminal Enterprise impact on other provisions (Article 25 of the Rome Statute)

Art 25 of the Statute of the international criminal court (ICC) contains a comprehensively detailed regulation for individual criminal responsibility, on the one hand, it deals with different modes of individual responsibility, on the other hand, it insists in the systematization of modes of participation (Schabas & Bernaz, 2011). However, it is based on the differentiation model which focused on four levels of participation under Article 25(3) of the ICC Statute (Schabas & Bernaz, 2011). Further, in common parlance, international crimes are committed by the cooperation of a large number of individuals where they may be connected through a network that could be called a state or military which were really organized and well disciplined (Schabas & Bernaz, 2011). Furthermore, they have come together, targeted their victims at the same time, they have planned, organized and finally implemented their plan by using force against their target so while determining the individual criminal responsibility within the group actions it would not decrease the degree of responsibility of individual with those who actually perpetrate the crime, for example, Adolf Hitler, who sent millions of people to their deaths without touching or physically hurting any victim himself (Werle, 2007).

Moreover, the Appeals Chamber sums up the problem as: “Most of these crimes do not result from the criminal propensity of a single individual but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although some members of the group may physically perpetrate the criminal act (murder…) the participation and contribution of the other members of the group are often vital in facilitating the commission of the offense in question. It follows that the moral gravity of such participation is often no less – or indeed no different - from those actually carrying out the acts in question.”

Article 25 of the Rome Statute, specifically paragraphs 1 and 2 insist and accepts the individual criminal responsibility as a universal principle which is recognized by the International Military Tribunal (Nuremberg Trials) and reaffirmed by the ICTY in the Tadic Judgment (Werle, 2007). In addition, subparagraphs (a-c) deal with the attribution and imposition of individual criminal responsibility, subparagraph (a) deals with three forms of perpetration: one’s own conduct as co-perpetrator or through another person ( some called it as perpetration by means) subparagraph (b) deals with other forms of participation such as ordering and attempted crime and soliciting or inducing others for its commission while subparagraph (c) deals with the subsidiary forms of responsibility of aiding and abetting on the commission of crime and subparagraph (d) deals with the contribution and facilitating the help with the group for achieving their goal (DeFalco, 2013).

Hence, Article 25 (3) (a-d) ICC Statute is based on differentiation model dealing with four levels of participation: at the top level , commission as  mode of participation which entails the high degree of individual responsibility; on the second level deals with other forms of accessory form such as instigation and ordering for those who provoke and induce others  for the commission of the international crimes; on third level, deals with the assistance which provide and facilitate the commission of the crime with others and finally at the end level it talks about the weakest mode of participation which is contribution with the group for the commission of the crime (Werle, 2007).   It is necessary to shed some light on the contents of Article 25(3) (a-d) of the ICC Statute for a better understanding of the different modes of criminal participation which is discussed below.

6.1. Commission (Perpetration): 

The general principles of liability apply across the various different offenses to impose the accountability on those who commit the crime by playing different roles or the accused may commit, participate in, or otherwise be found responsible for those crimes. These include different models of liability such as aiding and abetting, instigating and inducing, assisting or command responsibility etc, while it’s not only distinguishable on their actus reus or having different conduct elements but may also have different mental elements too, so that it could differentiate the degree and extent of their responsibility along with the differences on the sentencing stage (Werle, 2007).

It’s admitted that the principles of liability are not watertight compartments sometime they overlap for which the discretion is granted to the Trial Chambers by the ICTY to choose the appropriate label of responsibility under which the accused best suited and tried (Werle, 2007). Basically Article 25(3)(a) ICC Statute deals with three forms of the commission such as commission as an individual, joint commission with other and commission by or through another person while some include the commission by omission (Cryer & Friman, 2007) too where the first category inferred the higher responsibility as compared to others and must construed strictly (Werle, 2007).

i)           Commission as an Individual: a person who physically commits the crime or who’s conduct fulfills the requirements of the definition of crime under Article 25(3) (a) along with having a required mens rea which defines under Article 25(3) (a) of the Statute is responsible for the commission as a principle under international law.

ii)          Joint Commission (Co-perpetration): in case of joint commission all the members who come together for the commission of the crime while having a certain policy and design for its achieving so all the members are jointly and individually responsible for the crime committed on the basis of one for all and all for one theory which shows their shared intent for its commission.

iii)        Commission through another person ( perpetrator by means)( perpetrator behind perpetrator): in case of perpetrator behind perpetrator or so-called perpetrator by means shift the responsibility to those who used third party or their subordinates as a tool for the commission of the crime which is no doubt is a sub-category of commission while the same is punishable under international law. Criminal responsibility which is conferred under Article 25(3) (a) is independent from the direct perpetrator while it can be possible that the actual perpetrator is excused for the criminal liability on the legal ground such as not of a legal age, follow the orders of their seniors, etc. while he or she could be manipulated by their mastermind perpetrators that impose the criminal liability to the perpetrators who are behind the scene and those holds superior positions become actual perpetrators for the crime.

iv)        Commission by omission (Failure to prevent or punish): there is no express provision in the Rome Statute for the criminal responsibility in case of omission but no doubt there is certain circumstance which causes the crime to take place by failure to prevent or punish the perpetrator or it may be the intention of seniors to allow their subordinates to act in such a manner that produces the contemplate result which is clearly discussed under Article 28 of the Rome Statute under the heading of Command responsibility.

6.2.  Instigation and ordering

 Article 25 (3) (b) of the ICC Statute expressly highlights that, anyone who orders the commission of a crime under international law or who instigates (‘solicits’ or ‘induces’) another for the commission of the crime will be responsible for its commission on the basis that the crime is actually committed or attempted. The word ‘instigation’ has been defined by ad hoc tribunals of ICTY and ICTR jurisprudence respectively as “promoting” and ‘ urging or encouraging’ another to commit a crime where the causal link is required to prove the crime. while according to G.Werle, an instigator is that person who induces and instigate or influence another person to commit a crime under international law meanwhile, it is necessary that a causal link should exist between the instigation and commission of the crime, in addition, substantial contribution by the instigator to influence the actual perpetrator for the commission of the crime is sufficient to hold him responsible for the resulted crime (Van Sliedregt, 2012). further, regarding the mental element of the instigator, it only requires that the instigator should aware of the conduct of the perpetrator or having the knowledge that his provocation and inducing will have a substantial likelihood of commission of the crime (Van Sliedregt, 2012) whereas, the trial chamber further holds in number of cases that intention contains cognitive element of knowledge and a volitional element of acceptance and that this intention must be present with respect to both the participant’s own conduct and the principle crime he is participating in. an order is a command of superior for doing of certain actions or prohibiting from doing of certain actions to the subordinate irrespective of their relationship being a military one or civilian one whereas it could be a written one or oral one or it could be addressed to a specific addressee or to unknown recipients (Bantekas & Nash, 2003).

6.3.  Aiding and abetting (Assistance)

 There are two elements to impose the responsibility upon the person who assists the perpetrator to commit the crime namely, actus reus and mens reus. The Tribunals has defined the elements as actus reus of aiding and abetting is constituted and assumed by the acts or omissions which assist, further, or lend moral support to the actual perpetrator for the commission of a specific crime which no doubt substantially contribute and effectuate the perpetration of the crime while the mens rea element of aiding and abetting is the knowledge and the certainty of the contemplated result given by the aider and abettor while assisting the principle for its commission (Ingle, 2016). Moreover, assistance may be given or provided at any time it may be before the commission of the crime, during the course of action or even after the commission of the crime, however, the language used in Article 25(3) (c) does not need that the assistance has to have a substantial effect on the commission of the crime (Werle, 2007). further, the Appeals Chamber explain the actus reus and mens reus of aiding and abetting as under: (i) the aider and abettor carries out acts specifically directed to assist, further or lend moral support to the perpetration of a certain specific crime (murder, rape, extermination…), and this support has a substantial effect upon the perpetration of the crime, (ii) in the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principle. Meanwhile, the Appeals Judgment in case of Vasiljevic the chamber included the assistance of aiding and abetting within the ambit of commission with a lesser degree of responsibility as compared to the actual commission.

6.4.  Contribution to a group crime:

 The whole subparagraph (d) of Article 25(3) is an almost a literal copy of 1998 Anti-Terrorism Convention (Ambos, 2011). However, Article 25(3) (d) deals with a new form of criminal participation such as contributing to the commission of the actual crime or attempted through a group where it bears the weakest form of liability as it construed as a subsidiary mode of liability which is somehow slightly different from those previously mentioned in other subparagraphs (Werle, 2007). Further, in case of contribution to a group there are certain ingredients for establishing the actus reus and mens reus of the perpetrators, regarding the actus reus element of the Article 25(3) (d) requires the contribution to a crime under international law which is committed or attempted by a group whereas a group is an association of at least three members pursuing a common criminal plan and the mental element of Article 25(3) (d) provides two main standards so where the person give assistance and contribute to the crime (i) he has the aim to further their criminal purpose or common criminal design and (ii) he has the knowledge or awareness of the criminal  intent of the group which is about to commit an international crime hence the contributor become criminally liable under Article 25(3) (d).

7.     Current Status of JCE (Overall Jurisprudence)

After establishing the ad hoc tribunals and the international criminal court (ICC) has started to search and quest to find a proper theory of liability that could effectively address the systemic character of international crimes (van Sliedregt, 2014). Basically, they have focused on the central point and role played by the military and political leaders for the commission of the concerned crimes hence to end this, the tribunals and international criminal court (ICC) have relied on the doctrine of JCE and indirect joint perpetration, respectively. However, there are certain proposals for alternative concepts instead of JCE ‘functional perpetration’ is an alternative proposed concept of criminal liability by Harmen van der Wilt. Functional perpetration is a mode of criminal liability which imposes the criminal responsibility on those who hold the high post due to which they influence and effectuate others for the commission of the crime where they qualify to bear the criminal responsibility rather than those who physically perpetrate the crime as they follow the orders and carry out the instructions of their superiors (Damgaard, 2008). Moreover, the concept of functional perpetration offers number of interesting opportunities which are identical to the ‘superior responsibility’ and ‘command responsibility’ concepts for example, the concept of functional perpetration is identical to superior responsibility which show a hierarchy and an organizational structure which links up the functions of a military or civil commander to issue orders and commands their subordinates to follow. Furthermore, the position they hold which is very important for the establishment of criminal responsibility not as a condition for participation but as a starting point for inquiry of their involvement in concerned crimes besides these the ‘policy’ crimes which they execute for achieving their goals is perfectly express the concept of functional perpetration (Van der Wilt, 2007). It is a great challenge for the world community to bring the high-level officials and perpetrators to justice as they did not personally and physically commits the crimes but in some way or the other they have a link and connection with the resulted crimes for the same which is difficult to prove but not impossible whereas it has proven by the ad tribunals dealt with a number of such cases (Manacorda & Meloni, 2011). Hence, the international criminal tribunals recently adopted two different approaches to define the liability of high officials of accused in the commission of international crimes namely, Milosevic approach which basically explains the JCE doctrine (JCE has comprehensively discussed above) and The Al Bashir approach (Indirect Perpetration) deals with indirect perpetration which is important to dealt with as an alternative to JCE here (Manacorda & Meloni, 2011). There are several cases which deals with the concept of indirect perpetration where the principal used the actual perpetrator for the commission of the crime while some argue that due to the control over the crime it influences the physical perpetrator to commit the crime (Shelton, 2012). Furthermore, the ICC judges have interpreted and insisted that Article 25(3) (a) of the Rome Statute encompasses both the co-perpetration model on the ground of control over the crime and control over the organization which automatically shift the criminal responsibility upon the high-level officials (Manacorda & Meloni, 2011). Hence, Article 25(3) (a) 3rd alternative (through another) can be attributed to the accused if he controls and influence the conduct or will of others or conduct or will of their subordinates (Wirth, 2012).

8.     Research Methodology

The research would follow the doctrinal method of research. Both primary and secondary sources of data will be used. Primary sources include treaties, institutional positions and cases particularly the ICTY Statute especially Art 7(1), ICTR Statute especially Art 6(1), Rome Statute especially Art 25 and 30. Also all other relevant and necessary standing of these courts relates to the subject of research here. Secondary sources include books, journal articles along with other materials available online which shed light on the subject of research.

9.     Primary Sources

9.1. Treaties

●      Statute of the International Criminal Tribunal for the former Yugoslavia, 1993.

●      Statute of the International Tribunal for Rwanda, 1994.

●      Rome Statute, 1998.

9.1.1. Article 30 of the Rome Statute:

Article 30 of the Rome Statute of the international criminal law is the first international statute which provides for the mental element of crime which is required for criminal responsibility of individuals for serious violations of international humanitarian law (Finnin, 2012). Basically, Article 30 of the Rome Statute stated about the mental element of crime and provides for the definition of mental statue while committing a crime which is required to be proven for the criminal responsibility of an individual for the violation of international humanitarian law (Badar, 2008), while the threshold of mental element is very high (Schabas, 2011) to hold someone responsible for the committed crimes, in addition, no doubt it includes certain other concepts which will be elaborate in the coming discussion whether they are thought to be included by the draftsman or not, which yet to be answered. Meanwhile, there are number of debates and discussion among the scholars and international lawyers from different communities where some suggestions for the inclusion of ‘omission’, ‘recklessness’ and ‘dolus eventualis’ in the realm of Article 30 while some of them are of the opinion for the exclusion of them from Article 30 for criminal liability (Elewa Badar, 2009).

Generally, an act cannot be done or take place without prepared or intended mind where the mental status of the person is not ready or already prepared itself for performing whatsoever act it may be, however, according to the Latin maxim ‘Actus non facit reum nisi mens sit rea’ which means ‘ an act does not make [a person]  guilty , unless the mind be guilty’ mean in common parlance, that a person is not criminally liable or guilty for the commission of any crime unless and until the act is a prohibited act and the government not only proves that the offender did such a forbidden act (actus reus) but also it needs to prove the mental element or guilty mind of the accused (mens rea) while doing the act, in short, criminal liability required the proof of an evil-meaning mind with an evil-doing hand.

Hence, there is no specific definition which is generally accepted, is give anywhere in criminal law while some are of the opinion that ‘mens rea’ is defined as a ‘ general immortality of motives’ , ‘vicious will’ , ‘ evil-meaning mind’ etc where each of these concepts has a slightly different connotation from each other while there is one thing common in all the suggest ideas for means rea which is ‘moral blameworthiness’ that the accused (defendant) committed the social harm of an offense with a moral blameworthiness state of mind or the defendant committed a wrong which is forbidden and morally against the norms of the society where we can term it as ‘culpability’.

Meanwhile, it is hardly required the intention or knowledge for most of the crimes enlisted in the Rome Statute for,  because of their different inbuilt mens rea which is constructed in every crime according to their gravity and circumstance when they are being committed, like genocide is defined as a punishable act committed ‘with the intent to destroy’ a protected group, crimes against humanity talks about the widespread or systematic attack against civilian population ‘with knowledge of the attack’ etc., hence, most of the crimes listed under Article 8 of the Statute used the adjectives such as ‘willfully’, ‘wantonly’, and ‘treacherously’ therefore, Article 30 begin with the phrase ‘ unless otherwise provided’ which give the discretion to the judges to apply their minds which concepts are included and which concepts are excluded while dealing with Article 30 for the individual criminal responsibility for the violations of international humanitarian law.

9.1.2. Anatomy of Article 30 of the Rome Statute:

Article 30 of the Rome Statute provides that:

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the court only if the material elements are committed with intent and knowledge.

2. For the purpose of this article, a person has intent where

(a)    In relation to conduct, that person means to engage in the conduct;

(b)   In relation to consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purpose of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly. Article 30 of the Rome Statute discussed as follow.

9.2. Meaning of ‘intent’ under Article 30 ICC Statute

Article 30 deals with the same line of argument as of the Latin maxim of ‘actus non facit reum nisi sit rea’ it goes further, by arguing that the mental element of the article consists of two ingredients namely, volitional element of intent and cognitive element of knowledge which insist on the basis of the developments by the ad hoc tribunals on the issue of mens rea under their jurisprudence which needed both the elements of cognitive and volitional to be established as a legal standard and proven for imposing criminal responsibility for serious violations of international humanitarian law (Badar, 2008). However, to hold an individual criminally responsible for the commission of any crime listed under the Rome Statute or under the jurisdiction of the ICC it must be proven and established that the material elements were committed with intent and knowledge which is provided by Article 30 (1) (Badar, 2010).

Whereas, the ICC Statute did not provide for the definition of the actus reus or the material element of the crime which leaves the door open for interpretation to be adopted in different circumstances in due course of time to be understood from the phrase ‘material elements’ appears in Article 30 (1) meanwhile, this deficiency is remedied by subsequent paragraphs of the same Article under paragraphs (2) and (3) while establishing the relationship between the two mental elements and material elements of  an offence by referring to as conduct, consequence and circumstance (Badar, 2008). However, the term ‘intent’ has two broad meanings under Article 30 of the Statute whether it relates to conduct or consequence therefore, Article 30 (2) (a) a person has intent in  relation to conduct where ‘the person means to engage in that conduct’ while Article 30 (2) (b) where in relation to consequence, a person is said to have intent if ‘ that person means to cause that consequence’ or ‘ is aware that it will occur in the ordinary course of events (Elewa Badar, 2009).

9.3. The intent in relation to conduct (in the first degree):

According to Article 30 (2) (a) of the ICC Statute, a person is said to have the intention relates to a conduct when that person means to engage in that conduct; hence, this definition has two different aspects, first, the relationship between the conduct and intent set out in article while common lawyers called it ‘volitional element’ or ‘volitional’ part of an ‘act’ means the action has taken place with deliberately and voluntary action on the part of the perpetrator (Badar, 2008).

Whereas, this kind of intent is known as ‘intentionally,’ ‘purposefully,’ ‘direct intent or dolus directus) in common law systems such as the United States of America and Germany respectively (Elewa Badar, 2009). Second, intent with regard to conduct, there are different contradictory viewpoints for the inclusion of ‘omission’ within the ambit of conduct in the drafting history of Rome Statute therefore, the preparatory committee of 1996 included the word ‘omission’ within the heading of ‘Actus reus’ as ‘act and/or omission’ and the same is defined under Article 28 of the preparatory committee which provides that term ‘conduct’ defined as ‘ constitute either act or an omission, or a combination thereof’ which faced a disagreement on the part of the members and finally reject its inclusion within the article and suggest that the doors of interpretation should be left open to the future courts in due circumstance to constitute its meaning (Badar, 2008).

9.4.  The intent in relation to conduct (Oblique intent) or ( direct intent in the second degree):

According to Article 30 (2) (b) of the ICC Statute which provides for the second alternative of the intent with regard to consequence element, in such a case, the perpetrator did not intent the contemplated or resulted in conduct to happen but the perpetrator foresees as a certainty or as highly probable that certain circumstances will occur due to his/her conduct (Finnin, 2012), in another language, while the perpetrator does not intend the prescribed conduct to happen, but he has the knowledge and awareness that such result or consequence will occur in the ordinary course of events (Badar, 2010).

 For example, P wishes to kill V by bombing the building in which V is located. P is aware that there are other individuals in the building, and that they will almost certainly be killed as well. While P does not want these other individuals to be killed, he nevertheless bombs the building. Both V and the number of other individuals are killed in the blast (Finnin, 2012). Furthermore, M.E.Badar further goes and gives a judgment of a Canadian case of Regina v. Buzzanga and Durocher by Ontario court of Appeal focusing on the notion of ‘foresight of certainty’ as the second alternative of intent: “as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intents that consequence. The actor’s foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted to produce it, then he decided to bring it about (albeit regretfully) to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective (Badar, 2012).” 

9.5.  Dolus Eventualis, Recklessness and Article 30:

The ad hoc tribunals have recognized other degrees of the culpable mental element along with the direct intent of the first degree and indirect intent of second degree by going further and ensuring that volitional element of crimes also encompasses the other aspects of dolus such as dolus eventualis (Badar, 2010). Furthermore, the Pre-Trial Chamber in Lubanga case insisted that that dolus eventualis is applicable in situations where the perpetrator (a) is aware and have the knowledge about the resulted risk of his action or omission , and (b) undertakes and accepts the outcome by reconciling himself with it or consenting to the result by carrying out the act (Badar, 2008).

 On the other hand, the Chamber emphasized in the same case on the situations where the mental status and mental element of the suspect is ‘falls short of accepting that the objective elements of the crime may result from his actions or omission’ means the suspect thought of impossibility or non-probability of the resulted risk will not qualify under Article 30 of the Statute. However, the Pre-Trial Chamber excludes the recklessness from the realm of Article 30 by stating: “the concept of recklessness requires only that the perpetrator be aware of the existence of a risk that the objective elements of the crime may result from his or her actions or omissions, but does not require that he or she reconcile himself or herself with the result.

In so far as recklessness does not require the suspect to reconcile himself or herself with the causation of the objective elements of the crime as a result of his or her actions or omissions, it is not part of the concept of intention.” on the other hand, Antonio Casses advocates the necessity of including the [intent and knowledge within article 30], while he criticized the exclusion of recklessness from ambit of article 30 therefore, he claims that the intention and knowledge is presuppose to be established before imposing criminal liability of an individual for serious and heinous crime such as genocide, crime against humanity and aggression where the gravity of the crime is extreme but for less serious crimes such as war crimes , recklessness must be reconsidered and allowed to include within article 30 of the Statute (Badar, 2008).

9.6.  The Meaning of Knowledge:

Article 30(3) of the Rome Statute explains the term ‘knowledge’ on the part of the perpetrator while committing the crime. This article describes two aspects of knowledge firstly, knowledge concerning a circumstance if he or she has ‘awareness that it exists and secondly knowledge with respect to a consequence if he or she has ‘awareness that… it will occur in the ordinary course of events (Finnin, 2012) describes as follow.

1. ‘Awareness that a circumstance exists.’

Generally, if the perpetrator intends for a certain circumstance to exists at the time he carries out the crime then he only hope it exists or will exist because the knowledge according to circumstance element arises in various situations in various aspects due to the definition of the crime it produces or results in the crime where the conduct forms part of the definition of the crime (Badar, 2008) , for example, requirement of knowledge of the widespread or systematic attack directed against any civilian population as provided for in the chapeau element of article 7 (International Criminal Court, 1998, art. 7).

Therefore, the language of article 30 clearly expresses that ‘knowingly’ should be referred and looked from the perpetrator’s subjective state of mind and not from a reasonable person’s state of mind (Badar, 2008). In addition, knowledge under the article means ‘the actual knowledge’ and not the ‘constructive knowledge’ its immaterial how much certainty or high probability of the knowledge it may not pass the culpability test under article 30(3) meanwhile, a question can be ask here that, whether the doctrine of ‘willful blindness’ or ‘willfully shutting one’s eyes to the obvious’ could be able to fulfill the mens rea threshold under article 30(3) of the Statute?

The answer could be in affirmative if the doctrine applies only in the situation where the perpetrator is substantially believed or virtually certain that the fact exists. Furthermore, according to Glanville Williams describing the ‘willful blindness’ stating, “A court can properly find willful blindness only where it can almost be said that the defendant knew. He suspected that fact; he realized its probability, but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone is willful blindness. Hence, Sarah Finnin cites Williams and advocates that article 30 could be interpreted in such a way in cases that the perpetrator knows and realizes the high probability and certainty of the circumstance exist but intentionally and purposefully refrained and restrained him from obtaining the confirmation as he or she wanted to be able to deny knowledge (Finnin, 2012).

10.   Conclusion

The doctrine of Joint Criminal Enterprise is a discretionary tool in the hands of Judges of the ad hoc Tribunal for imposing the individual criminal liability to members of the groups for the perpetration of the crime they commit jointly. However, there is no specific provision in the previous Statutes or Charters of Criminal courts for the joint criminal liability. The Nuremberg Trials were the first trials emerged in response to collective criminality. The Statutes of ICTY and ICTR did not expressly provide for joint criminal liability in their Statutes though it provides for individual criminal liability. Notwithstanding, they provide for the criminal responsibility in other forms of commission such as planning, instigating, executing, assisting, aiding or abetting but not explicitly talks about joint criminal liability until and unless the Rome Statute comes into existence which provides a comprehensive provision under Article 25(3) for individual Criminal Responsibility which also includes the Joint Criminal Enterprise within this Article.

Moreover, Dusko Tadic was the first defendant who tried by the ICTY under the doctrine of JCE. The Appeals Chamber in the instant case divides the doctrine into three types based on their mental element while the physical element (actus reus) is the same for all the types. Namely, the basic form, systemic form, and extended form. However, the long debate regarding the validity and legality of the JCE doctrine has come to an end by establishing the International Criminal Court (ICC) which provides a comprehensive provision under Article 25 of the Rome Statute where the JCE expressly include in the provision.

Therefore, JCE doctrine is more suitable for the group criminality where there is no one perpetrator, but several members are participating for its commission. Mainly JCE III could help the court for determining the individual criminal responsibility of every individual in the group on the ground of it's natural and foreseeable; nevertheless, they have a direct or indirect connection with the commission of the resulted crime. Though there are challenges while relying on JCE but some scrutiny is required regarding mental element specifically for the special intent crimes. Hence, the doctrine of JCE is rejected in a number of cases to be applied for the crimes of genocide on the basis of lack of specific intent to destroy or commit the crime of genocide.it would not be legal to convict everyone under one heading for the crimes of genocide.

Funding: Not applicable.

Conflict of Interest: The authors declare no conflict of interest.

Informed Consent Statement/Ethics Approval: Not applicable.