This is the second in a series that will post excerpts from the Armed Forces Revolutionary Council Appeal Judgment from the Special Court for Sierra Leone. The section concerns Joint Criminal Enterprise, a mode of liability that is somewhat akin to conspiracy. As with previous selections, this post will only be a selection from the judgment for the sake of space and time. This should not be interpreted as placing particular emphasis on certain sections. Citations and references are omitted as well.
Joint Criminal Enterprise
The actus reus for all forms of joint criminal enterprise liability consists of the following three elements:
(i) a plurality of persons;
(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.
The question for determination in this appeal pertains to the requisite nature of the common plan, design or purpose. It can be seen from a review of the jurisprudence of the international criminal tribunals that the criminal purpose underlying the JCE can derive not only from its ultimate objective, but also from the means contemplated to achieve that objective. The objective and the means to achieve the objective constitute the common plan.
In Kvocka et al. the ICTY Appeals Chamber was of the opinion that "the common design that united the accused was the creation of a Serbian state within the former Yugoslavia, and that they worked to achieve this goal by participating in the persecution of Muslims and Croats." Whereas creation of a Serbian State within the former Yugoslavia is not a crime within the Statute of the ICTY, the means to achieve the goal, such as persecution, constitute crimes within that statute.
Reference to the indictments in cases of Martic and Haradinaj et al., cited by the Prosecution, is similarly instructive. In Haradinaj et al. for example, it would appear that the Trial Chamber accepted that the pleading of joint criminal enterprise was proper notwithstanding the Prosecution pleading a common purpose (namely "consolidate[ing] the total control of the Kosovo Liberation Army over the KLA operational zone of Dukagjin") which itself does not amount to any crime within the Statute of the ICTY. However, the Haradinaj Indictment clearly alleges that the joint criminal enterprise involved the commission of crimes such as intimidation, abduction, imprisonment, beating, torture and murder of targeted civilians in violation of Articles 3 and 5 of the ICTY Statute.
Furthermore, the Appeals Chamber notes that the Rome Statute of the International Criminal Court ("Rome Statute" and "ICC," respectively) does not require that the joint criminal enterprise has a common purpose that amounts to a crime within the ICC's jurisdiction. Indeed, the Rome Statute departs altogether from the use of the phrase "amounts to" and instead requires that the "criminal activity or criminal purpose . . . involves the commission of a crime within the jurisdiction of the Court." This formulation reflects the consensus reached by all of the States negotiating the Statute of the ICC at the Rome Conference, and therefore is a valuable indication of the views of States and the international community generally on the question of what constitutes a common purpose.
In view of the foregoing, the Appeals Chamber concludes that the requirement that the common plan, design or purpose of a joint criminal enterprise is inherently criminal means that it must either have as its objective a crime within the Statute, or contemplate crimes within the Statute as the means of achieving its objective.
Turning to the present Indictment, in order to determine whether the Prosecution properly pleaded a joint criminal enterprise, the Indictment should be read as a whole. In particular, the most relevant paragraphs of the Indictment to the pleading of JCE are paragraphs 33-35, which state:
"33. The AFRC, including ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, and the RUF, including ISSA HASSAN SESAY, MORRIS KALLON and AUGUSTINE GBAO, 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.
34. The joint criminal enterprise included 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. The crimes alleged in this Indictment, including unlawful killings, abductions, forced labour, physical and sexual violence, use of child soldiers, looting and burning of civilian structures, were either actions within the joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise.
35. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, by their acts or omissions, are individually criminally responsible pursuant to Article 6(1). of the Statute for the crimes referred to in Articles 2, 3, and 4 of the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated."
The ultimate objective alleged in paragraph 33 of the Indictment, namely: 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," may not itself amount to a crime within the Statute of the Special Court, nonetheless, paragraph 33 of the Indictment read together with paragraphs 34 and 35 demonstrates the Prosecution's allegation that the parties to the common enterprise shared a common plan and design to achieve the objective by conduct constituting crimes within the Statute.
Paragraph 33 of the Indictment states that the plan was to "take any actions necessary" to gain territorial control and political power. Paragraph 34 of the Indictment states that the actions "included": controlling the population of Sierra Leone; using members of the population to support the JCE; and specifically enumerated crimes such as "unlawful killings, abductions, forced labour, physical and sexual violence." Paragraph 35 of the Indictment also indicates that crimes "referred to in Articles 2, 3, and 4 of the Statute . . . were within [the] joint criminal enterprise," or that those crimes were a reasonably foreseeable consequence of the JCE.
The Appeals Chamber holds that the common purpose of the joint criminal enterprise was not defectively pleaded. Although the objective of gaining and exercising political power and control over the territory of Sierra Leone may not be a crime under the Statute, the actions contemplated as a means to achieve that objective are crimes within the Statute. The Trial Chamber took an erroneously narrow view by confining its consideration to paragraph 33 and reading that paragraph in isolation. Furthermore, the Trial Chamber erred in its consideration of "evidence" adduced at trial to determine whether the Indictment was properly pleaded. The error arose because determination of whether the Prosecution properly pleaded a crime must be determined on the basis of whether the Prosecution pleaded all the material facts in the Indictment, not whether it had adduced evidence to support the allegations.
Several other issues arose in the context of JCE for which the Appeals Chamber wishes to express itself. The Trial Chamber erred in concluding that the Prosecution could not plead the basic and extended forms of joint criminal enterprise liability in the alternative on the grounds that the two forms, as pleaded, logically exclude each other. Pleading the basic and extended forms of JCE in the alternative is now a well-established practice in international criminal tribunals. The Trial Chamber erred in finding that the Indictment failed to specify the period covered by the JCE. That period is that covered by all of the alleged crimes, which in this case is between 25 May 1997 and January 2000.
The Appeals Chamber having concluded that joint criminal enterprise was not defectively pleaded in the Indictment, need not address the Trial Chamber's finding that the Prosecution failed to cure the defective pleading of JCE. Similarly, Kanu's Tenth Ground of Appeal, that the Trial Chamber erred in law by failing to quash the entire Indictment after finding that joint criminal enterprise was defectively pleaded, must fail.