Why prosecute on the basis of joint criminal enterprise? Taking Akayesu as an example.
JCE is inclusive and expansive in scope. It can be used to prosecute each co-perpetrator who participates in a common criminal plan/ joint criminal enterprise with intent. Under JCE, liability is attached to other actions outside of the ‘commission of the act’.
There is no need for actual ‘commission’, physical contact or even physical presence. Convictions for rape and sexual assault can be secured from participation in a common criminal purpose which resulted in those crimes.
Traditionally, the prosecution must prove that the accused ‘committed’ the crime. We can appreciate the difficulties of obtaining convictions for ‘commission’ using two following examples.
Taking the example of commission of genocide through rape: a conviction will require proof that the accused intended to commit rape in order to destroy a population. Due to these stringent evidentiary burdens, convictions for individual and command responsibility can be difficult to secure. Indeed, generally, those suspected or accused of rape and sexual violence are rarely charged, or if charged, the charges are often dropped due to evidentiary deficiencies. Courts cannot proceed because whilst convictions for rape and sexual violence are important to secure, it is also important to uphold the rights of the accused and the legitimacy of the criminal justice system.
This places lawyers in a difficult position. Under JCE, liability is attached to other modes outside of the ‘commission’.
Advocates can ensure that prosecutions are strategized to take into account all levels of responsibility, especially in cases where proof of commission is difficult to establish. If there is a finding of material assistance, encouragement, or incitements during the investigations, then the case can be strategized to demonstrate that the elements of JCE have been met. This must be meticulously thought through. Due to the rigid nature of criminal law, and sometimes rightly so, unless the evidence satisfies the specific elements of a crime, the prosecutor has not proven his case beyond a reasonable doubt. Therefore the strategy adopted by the prosecution is critical. Taking the example of Akayesu, though it was the first rape conviction to be handed down by an international court, many incidents escaped convictions due to the lack of evidence that Akayesu had ordered rape or was aware of rapes by his subordinates outside the compound of the bureau communal. Admittedly, there were cases where he was likely to have been aware of rapes, but for the fact that the words he used at the time directing his subordinates to kill did not include an order to rape or did not indicate an awareness that it was about to be committed, he was not found guilty in such cases. He was present at the compound but there was no direct and unequivocal evidence of an order of rape or awareness of rape.
In considering the role of the Accused in the sexual violence which took place and the extent of his direct knowledge of incidents of sexual violence, the Chamber has taken into account only evidence which is direct and unequivocal. Witness H testified that the Accused was present during the rape of Tutsi women outside the compound of the bureau communal, but as she could not confirm that he was aware that the rapes were taking place, the Chamber discounts this testimony in its assessment of the evidence. Witness PP recalled the Accused directing the Interahamwe to take Alexia and her two nieces to Kinihira, saying "Don't you know where killings take place, where the others have been killed?" The three women were raped before they were killed, but the statement of the Accused does not refer to sexual violence and there is no evidence that the Accused was present at Kinihira. For this reason, the Chamber also discounts this testimony in its assessment of the evidence.
After careful consideration of the evidence presented at trial the Chamber is convinced that Witness GDT was raped by members of the Interahamwe on 7 April 1994 in Susa secteur, Kinigi Commune. It is not in contention that the Accused was not present at the scene of the rape of GDT. The Chamber finds, by a majority, Judge Ramaroson dissenting, that the Prosecution did not prove that the Accused issued a specific order to rape or sexually assault Tutsi women in Susa secteur, Kinigi Commune on that day.
The Chamber is convinced that Witness GDF was raped on 10 April 1994 by members of the Interahamwe. The Chamber is not convinced, by a majority, Judge Ramaroson dissenting, that the Accused was present at the site of the rape during the time of the rape itself.
This is itself a critique of international criminal law and the gendered implications of how criminal responsibility is engaged. Under the Rome Statute, ICTY Statute and ICTR Statute, the criminal responsibility of a superior is triggered upon his knowledge that his subordinates were committing or about to commit the crime. The failure of a superior’s duty of due diligence under international human rights law to take reasonable measures to prevent subordinates from committing sexual violence and rape does not automatically trigger criminal responsibility. Criminal responsibility is only engaged at the point the superior acquired knowledge that ‘such a crime is being prepared or planned, or when he has reasonable grounds to suspect’. This remains a lacuna in the law.
The theory of JCE can be strategically positioned to mitigate the effects of this lacuna. The critique behind the Chamber’s reluctance to find Akayesu criminally responsible for the specified incidents is not just a critique of the rigidity of international law generally, but also of the Prosecution’s failure to argue an alternative theory of responsibility. Had the Prosecution strategized differently, i.e. pursuant to the incidents described above, argued for Akayesu’s individual criminal responsibility on the basis of JCE, the Chamber would have inquired if the rapes were a natural or reasonably foreseeable outcome of his words, presence and orders.
Instead, the standard adopted was whether ‘he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and, failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The latter is a much stricter standard.
Even if a person cannot be substantively linked to the crime because it cannot be proven that he had committed the crime, his actions may still fall within the definition of responsibility if he was participating in a common plan. As these crimes often occur within a system of practices and policies where sexual crimes are passively permitted or actively ordered, both high-ranking officials and soldiers are liable for direct and indirect responsibility through the doctrine of JCE or otherwise, command responsibility. Indeed, without the pervasive reach of the ‘naturally and reasonably foreseeable outcome’ standard to the most senior in rank, the law that aspires to hold those most accountable for these crimes would cease to be effective. The standard of ‘foreseeable outcome’ is in itself a type of judicial access and right of equal protection under CEDAW General Recommendation No. 19 which can be used as an interpretive tool alongside JCE when prosecuting sexual violence and rape. Advocates can evaluate whether on the facts of the case, a) the accused could be charged under a particular form of JCE and b) whether the evidence gathered could be used to support the charge and ‘what further evidence may be required’.
 Prosecutor v. Akayesu, (Trial Chamber), Case No. ICTR-96-4, (ICTR), 2 September 1998, Para 451
 Prosecutor v. Kajelijeli, (Trial Chamber), Case No. ICTR-98-44A, (ICTR), 1 December 2003, Para 681
 Kajelikeli (n. 2) para 682
 Eboe-Osuji Chile, ‘Rape and Superior Responsibility: International Criminal Law in Need of Adjustment’, (Guest Lecture Series of the Office of the Prosecutor, The Hague 20 June 2005) 10 <http://www.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/050620_Chile_presentation.pdf> accessed on 8 April 2013
 Eboe-Osuji Chile (n 4) 12
 Patricia V. Sellers, ‘The Prosecution of Sexual Violence in Conflict: The Importance of Human Rights as Means of Interpretation’ (Office of the High Commissioner of Human Rights 14, 2007) 28
<http://www2.ohchr.org/english/issues/women/docs/Paper_Prosecution_of_Sexual_Violence.pdf> accessed on 8 April 2013.
 Binaifer Nowrojee, ‘Your Justice is Too Slow: Will the ICTR Fail Rwanda’s Rape Victims?’ (United Nations Research Institute for Social Development, Occasional Paper No. 10, 2005) 10 <http://www.unrisd.org/80256B3C005BCCF9/%28httpPublications%29/56FE32D5C0F6DCE9C125710F0045D89F> accessed April 7, 2013