Liability can extend to recurrence of crimes
The Krijsnik Judgment established that in addition to the original crimes under JCE, liability can extend to the recurrence of such crimes if not prevented.
An expansion of the criminal means of the objective is proven when leading members of the JCE are informed of new types of crime committed pursuant to the implementation of the common objective, take no effective measures to prevent recurrence of such crimes, and persist in the implementation of the common objective of the JCE. Where this holds, JCE members are shown to have accepted the expansion of means, since implementation of the common objective can no longer be understood to be limited to commission of the original crimes. With acceptance of the actual commission of new types of crime and continued contribution to the objective, comes intent, meaning that subsequent commission of such crimes by the JCE will give rise to liability under JCE form 1.
Liability for sexual assault during humanitarian crises
In the Kristic Judgment, General Kristic was found guilty for “the incidental murders and rapes, beatings and abuses” because he was part of a joint criminal enterprise that forced transfers of people en masse which promulgated a humanitarian crisis that enabled the commission of rapes. Using the JCE framework, he was found guilty for rape using the test that rape was a ‘natural and foreseeable outcome’ of his participation in the intended joint criminal conduct.
The Judgment surmised: “[T]here is no doubt that these crimes were the natural and foreseeable consequences of the ethnic cleansing campaign. Furthermore, given the circumstances at the time the plan was formed, General Kristic must have been aware that an outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of the regular and irregular military and paramilitary units in the area and the sheer lack of sufficient numbers of UN soldier to provide protection.
Using JCE to characterize rape and sexual violence as tool of war
In war, most crimes are perpetrated by low-level militia members and soldiers. But the Judgments in ICTY and ICTR demonstrate that these acts could only occur because of calculated military and political decisions in the organization of war. It is not disputed that high ranking officials instigated, encouraged, oversaw and committed rape and sexual violence.
Therefore when JCE is used to prosecute sexual violence, it is also an acknowledgment that rape and sexual violence takes place in a larger master plan. Indeed, as in the former Yugoslavia, mass or systematic rape, forced pregnancy, forced prostitution and sexual violence was part of the political and military machinery to terrorise and destroy women and their communities. They were part of a master plan.
These incidents highlight an important flaw in traditional conceptions of rape. Rape and other forms of sexual assaults have often been characterized as a crime of ‘sexual’ nature; relating to uncontrolled passions and lusts of men, sometimes involving the provocation of women. Historically, rape and sexual violence was deemed inevitable, a deviate conduct of soldiers. However, the nature of sexual violence and scale in which it happens demonstrates the purposes of its use i.e. as a tool of war organized by those most senior in rank to achieve their political and military goals. The theory of JCE pre-supposes the notion of a common plan between co-perpetrators. It pre-supposes that these acts are not isolated acts of physical contact or penetration by wayward soldiers. It quashes the common defence of ‘I did not commit the acts myself,’ because commission is only one act within the common plan.
The above interpretation is not only dictated by the object and purpose of the Statute but is also warranted by the very nature of many international crimes which are committed most commonly in wartime situations. Most of the time these crimes do not result from the criminal propensity of single individuals 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 only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less – or indeed no different – from that of those actually carrying out the acts in question.
Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.
Not mutually exclusive
It is worthwhile for advocates to note that the modes of individual criminal responsibility i.e. planning instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of a crime, is not mutually exclusive. This means that it is possible for the accused to be criminally responsible of the above and on the basis of JCE ‘if it reflects on the totality of the accused’s conduct’.
Beyond physical contact and presence
Indeed, these modes of liability need to be brought into the forefront in order to a) document the different manifestations of sexual violence, b) de-link sexual violence from the actual ‘commission’ or requirement of physical contact, and c) expand the discourse of sexual criminality to encompass acts that have been traditionally viewed in times of peace as, an ordinary part of ‘life’, ‘men’s lifestyle’ or ‘male humour’. The use of JCE in a court of law will promulgate an ‘official’ condemnation of all forms of actions that lead to a foreseeable consequence of rape and sexual violence. Advocates can use JCE to strategize how each co-perpetrator could be charged for his/her role in the crime - and through these prosecutions evolve the jurisprudence of JCE and gender-specific crimes to criminalize all forms of actions that promulgate violence against women.
It is crucial that a society self-reflects on the structures, power-relations and popular culture that enabled such wide and systematic commission of sexual violence. Though articulated in legal terms, the theory of JCE situates criminality in both commission and other forms of participation, bringing the context of sexual violence into the fore. Through a multi-disciplinary and gender competent application of JCE, advocates can carve a unique space within its application for gender justice. Indeed, the lawyers involved in ICTY and ICTR produced legal commentary identifying and interrogating gender-stereotyping and discrimination in peace-time that had led to perverse and aggressive forms of sexual assault in times of strife and conflict.
 Prosecutor v. Kvocka (Trial Chamber), Case No. IT-98-30/1, (ICTY), 2 November 2001, para 327
 Prosecutor v. Krajisnik, (Trial Chamber), Case No. IT-00-39, (ICTY), 27 September 2006, para 1098
 Prosecutor v. Krstic, (Trial Chamber), Case No. IT-98-33-T, (ICTY) 2 August 2001, para 616
 Prosecutor v. Dusko Tadic (Appeal Judgement), Case No. IT-94-1-A, (ICTY), 15 July 1999, para. 191-192
 Prosecutor v. Vlastimir Djordjevid, (Trial Chamber), Case No. IT-05-87/1-T, (ICTY) 23 February 2011, para 2193