The Application of the Joint Criminal Enterprise Doctrine in International Criminal Law for the Prosecution of Sexual Offences

[摘要] ENGLISH ABSTRACT : The aim of my thesis is to test Haffajee‟s propositions in order to determine the most suitableconstruction of the Joint Criminal Enterprise ('JCE) doctrine to establish a link between anaccused and a sexual offence, perpetrated by another, where there is reason to believe that theaccused had intent and made a contribution. An evaluation of cases, concerning incidences ofsexual violence, from the International Criminal Tribunal for Rwanda ('ICTR) and theInternational Criminal Tribunal for the Former Yugoslavia ('ICTY) revealed that the reoccurringinability of the prosecution to successfully link the accused to the crime, committed by another, isthe cause of the difficulty experienced in securing successful prosecutions. The individual criminalresponsibility of the physical perpetrator therefore falls beyond the scope of this thesis.The JCE doctrine is a mechanism that attributes individual criminal responsibility to an accusedfor crimes that he or she did not physically perpetrate. The accused‟s wrongfulness arises from hisor her intentional and substantial contribution to the criminal enterprise with the direct intent offurthering the common criminal purpose or plan. JCE category three has been successfully used bythe ICTR, ICTY and United Nations Mechanism for International Criminal Tribunals ('MICT) toestablish the criminal responsibility of high-ranked officials for acts of sexual violence committedby others. However the JCE doctrine has not been used by the International Criminal Court('ICC). My research therefore departed from the primary assumption that the ICC may rely on thejurisprudence of the ad hoc tribunals when interpreting provisions of the Rome Statute pertaining toindividual criminal responsibility, in order to sustain the continued use of the JCE doctrine withininternational criminal law. An in-depth investigation revealed that the jurisprudence of the ad hoctribunals is neither expressly listed as an applicable source for interpreting the Rome Statute nordoes it amount to binding precedent. Nevertheless, the ICC may have to consider the jurisprudenceof the ad hoc tribunals when interpreting the Rome Statute because the jurisprudence often reflectsprinciples and rules of international law.Notwithstanding the usefulness of JCE category three, the doctrine cannot unjustifiably limit therights of the accused or infringe the principles of legality and the principle of culpability. Theoriginal construction of JCE category three, as first applied by the ICTY in the Prosecutor v Tadić,poses a threat to the principle of culpability because it imposes equal liability to all contributoryJCE members, irrespective of their degree of contribution. Furthermore, it has been used toestablish liability for specific intent crimes even though the accused did not possess specific intent.Arguably, the reform of article 25 of the Rome Statute that expressly incorporates and codifies amore detailed construction of JCE category three, as developed by the ad hoc tribunals over adecade, which allows for attribution of a varying degrees of liability; relative to the specificaccused‟s intent and contribution, shall ensure the protection of the principle of culpability and theprinciples of legality.

[发布机构] Stellenbosch University