by Andrés Pérez
from ASIL Insights, Volume 19, Issue 13
Cross-Posted with Permission from ASIL
On September 29, 2014 it may have become considerably harder for civilian and military superiors to avoid criminal liability for mass sexual and gender-based violence (SGBV) after a landmark conviction by the United Nations International Criminal Tribunal for Rwanda (ICTR) was affirmed on appeal.1 In the trial judgement for The Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse (Karemera et al.), Édouard Karemera and Matthieu Ngirumpatse, two of the highest-ranking politicians in Rwanda's 1994 interim government, were found liable for the mass rape, mutilation, and sexual assault of thousands of Tutsi women and girls during the Rwandan genocide.
Throughout their trial, Karemera and Ngirumpatse relied on a common and until now effective defense favored by high-level superiors who have been charged with mass SGBV crimes. The pair contended that they were not in charge of the Interahamwe—a Hutu militia that carried out some of the worst crimes during the genocide—or soldiers of the Rwandan Armed Forces (RAF). Moreover, they asserted that they did not ask the Interahamwe or RAF to commit rapes and sexual assaults, or have the means to prevent these heinous acts once the genocide "spiraled out of control."2
Karemera and Ngirumpatse were likely confident that they would avoid the prosecution's allegation that they were liable for genocide and rape as a crime against humanity. After all, there was no evidence that either had personally raped or sexually assaulted anyone during the genocide. Furthermore, there was no evidence that Karemera or Ngirumpatse had specifically ordered the Interahamwe, RAF, or other militiamen to rape or sexually assault Tutsi women and girls during the genocide. Finally, Ngirumpatse was away from Rwanda on official mission during part of the genocide.3
However, the prosecution relied on a complex and seldom pleaded doctrine of criminal responsibility known as extended liability for joint criminal enterprise (JCE), which is also referred to as "extended JCE" or "JCE III."4 Although the prosecution at the international criminal tribunals had previously relied on extended JCE in a handful of cases, it had never asserted that an accused was liable for rapes and sexual assaults under this mode of responsibility. Accordingly, the trial chamber judges in Karemera et al. were faced with a novel question of law.
Extended Liability for Joint Criminal Enterprise
Under this theory of criminal responsibility, an accused must first be found liable for participating in a "basic" JCE (in this case, the plan to destroy Rwanda's Tutsi population in whole or in part). Once the prosecution proves the accused's participation in the basic JCE, the accused may be found liable for a crime outside of its common purpose ("extended crime") that was committed by another JCE member (in this case, rape and sexual assault). A person is considered a JCE member if he contributes significantly to the common purpose of the JCE in any form, regardless of whether he is present at the time and place of the perpetration of the crime.5
For the accused to incur liability for an extended crime, it must be foreseeable that the extended crime was a possible consequence of the implementation of the basic JCE. In addition, the accused must have willingly taken the risk that the extended crime would be committed during the implementation of the basic JCE.6
Crucially for the prosecution, the doctrine of extended liability for JCE contains an extension that also permits liability for an extended crime committed by a non-member of the basic JCE. This was pivotal in the case against Karemera and Ngirumpatse because there was no evidence that other members of the basic JCE had personally committed any of the rapes and sexual assaults.
In order for an accused to incur liability for an extended crime committed by a non-member of the JCE, the non-member must have the requisite intent to participate in, and significantly contribute to, the JCE. Furthermore, in the circumstances of the case at hand, it must have been: 1) foreseeable that the non-member would commit the extended crime in the execution of the common purpose of the JCE; and 2) the accused must have been aware that the extended crime was a possible consequence of the implementation of the common purpose of the JCE and he must have willingly taken the risk that it would be committed.7 An accused demonstrates a willingness to take this risk by continuing to participate in the JCE despite the awareness that the extended crime is a possible consequence of the implementation of that enterprise. Moreover, the extended crime must be perpetrated in the execution of the common purpose.8
The Trial Chamber's Conclusion
After a detailed analysis of the evidence, the Trial Chamber found that Karemera and Ngirumpatse had participated in a very broad basic JCE to destroy the Tutsi population of Rwanda. Once it made this threshold finding, the Trial Chamber further concluded that the Interahamwe and RAF soldiers must have intended to participate in, and significantly contributed to, the plan to exterminate Rwanda's Tutsi population. Furthermore, the Trial Chamber determined that it must have been foreseeable to Karemera and Ngirumpatse that the Interahamwe and RAF soldiers would commit rapes and sexual assaults as they carried out the basic JCE to destroy the Tutsi population in Rwanda. (Indeed, Karemera himself testified at trial that it was ridiculous to think that soldiers do not rape during war.) Finally, the Trial Chamber found that Karemera and Ngirumpatse must have been aware that rapes and sexual assaults were a possible consequence of the plan to exterminate Tutsis in Rwanda and concluded that they must have willingly taken the risk that the Interahamwe and RAF soldiers would commit these crimes. According to the Trial Chamber, Karemera and Ngirumpatse demonstrated their willingness to take this risk because they continued to execute their plan to exterminate Rwanda's Tutsis despite their awareness that widespread rapes and sexual assaults were being committed throughout the country.9
In the course of its analysis, the Trial Chamber set forth the following landmark conclusion, which may soon form part of the wider body of international law:
The Chamber finds that during a campaign to destroy, in whole or in part, a national, ethnic, racial, or religious group, a natural and foreseeable consequence of that campaign will be that soldiers and militias who participate in the destruction will resort to rapes and sexual assaults unless restricted by their superiors.10
This conclusion clearly states that rapes and sexual assaults are a naturally foreseeable consequence of any genocidal campaign. It also unequivocally asserts that superiors are criminally liable for these rapes and sexual assaults if they do not restrict them. In this regard, the Karemera et al. trial judgment represents a quantum leap forward in addressing responsibility for mass SGBV crimes under international criminal law.
Criticisms of Extended Liability for JCE
Extended liability for JCE is not immune to criticism, however, and skeptics tend to focus their arguments on two grounds. First, they contend that this doctrine violates the principle of culpability because it holds an accused responsible for a crime even though he did not commit its actus reus or possess its specific mens rea. They also assert that extended liability for JCE is invalid because it did not arise from customary international law. In support of this latter claim, critics often fixate on the fact that extended liability for JCE arose for the first time in the International Criminal Tribunal for the Former Yugoslavia (ICTY) appeals judgment in Prosecutor v. Duško Tadić (Tadić),11 rather than from World War II era cases and national jurisdictions.12
With regard to the first criticism, it is undisputed that extended liability for JCE holds an accused responsible for a crime even though he did not commit the actus reus or necessarily possess the specific mens rea applicable to that crime. However, this is not a novel practice in customary international law. The doctrine of command responsibility, for example, is a longstanding principle of customary international law that assigns criminal responsibility to civilian or military superiors for war crimes committed by their subordinates, based on the superior's failure to take measures to prevent or punish the commission of such crimes. An accused does not have to commit the actus reus or possess the specific mens rea for a crime to be found liable under the theory of command responsibility.13 Consequently, it does not appear that extended liability for JCE categorically violates the principle of culpability merely because the accused does not have to commit the actus reus or possess the mens rea for a crime.
Although it is widely accepted that extended liability for JCE arose from the ICTY Trial Chamber's judgment in Tadić, rather than from World War II cases and national jurisdictions, this does not render it invalid. While the decisions of the Nuremberg and Tokyo Tribunals certainly laid the foundation for international criminal law, it would be unreasonable to reject other sources as illegitimate. After all, international criminal law is still a nascent field and evolving field.
Customary international law, which results from a general and consistent practice of states, is certainly one of the primary sources of international law. However, Article 38(d) of the Statute of the International Court of Justice also sets forth "judicial decisions and the teachings of the most highly qualified publicists of the various nations" as subsidiary means for the determination of rules of international law.14 Accordingly, it can be reasonably argued that the caselaw of the international criminal tribunals (ICTR and ICTY) can inform the legitimate evolution of rules of international law, including modes of liability. Indeed, ICTR and ICTY judgments are drafted by highly qualified judges, academics, and legal professionals from various nations. Therefore, it does not appear that extended liability for JCE is an invalid legal doctrine simply because it did not arise from the practice of national jurisdictions (customary international law).
Thus, the Karemera et al. judgment is a legitimate source for informing the practice of other international or domestic tribunals charged with assessing liability for mass SGBV crimes. In this regard, victims, advocates, prosecutors, and judges now have a powerful tool at their disposal with which to bring persons responsible for mass SGBV crimes to justice.15
About the Author: Andrés Pérez is based in Nairobi, Kenya where he works as a Senior Analyst for Sahan Foundation, a private think tank that focuses on counter-terrorism, security, and governance in Somalia.
 Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement (AC), ¶¶ 613–36 (Sept. 29, 2014).
 Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse, Case No. ICTR-98-44-T, Judgement (TC), ¶¶1470, 1471 (February 2, 2012).
 Id. ¶¶ 1481, 1485.
 Id. ¶ 1465.
 Id. ¶¶ 1436, 1438.
 Id. ¶¶ 1462, 1463.
 Id. ¶ 1464.
 Id. ¶¶ 1462–63.
 Id. ¶¶ 1473–89
 Id. ¶ 1476.
 Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), ¶¶ 195–229 (July 15, 1999).
 Kevin John Heller, The ECCC Issues a Landmark Decision on JCE III, Opinio Juris (May 23, 2010, 3:33 AM), http://opiniojuris.org/2010/05/23/the-eccc-issues-a-landmark-decision-on-jce-iii/.
 Rule 153, Command Responsibility for Failure to Prevent, Repress or Report War Crimes, International Committee of the Red Cross, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule153 (last visited May 26, 2015).
 Statute of the International Court of Justice, art. 38(d), available at http://www.icj-cij.org/documents/?p1=4&p2=2.
 Although this article focused on the relationship between extended liability for JCE and SGBV in the context of the Karemera et al. judgment, the author would like to point out that extended liability for JCE is a mode of direct criminal responsibility that can be applied to any crime. Accordingly, extended liability for JCE, as applied in the Karemera et al. judgment, may also serve as a powerful tool for bringing persons responsible for mass crimes other than SGBV to justice.