Joint criminal enterprise (JCE) refers to mode of liability used in international war crimes tribunals that extends criminal liability to willing members of criminal groups. Specifically, it allows courts to try defendants who knowingly and voluntarily participate in a criminal group as co-perpetrators of that group’s war crimes, even if there is no evidence the defendants physically committed the war crime themselves.
JCE was created by judges on the International Criminal Tribunal for the Former Yugoslavia (ICTY)’s Appeals Chamber to overcome the challenge of determining criminal liability. While it could be easily established that a war crime was committed by a group, parceling out liability in the context of a war was far more difficult.
JCE extends liability to defendants under three categories of culpability:
- JCE I requires that all members of the JCE share the same criminal intent to commit a war crime. For example, JCE I may apply to all members of a paramilitary group that set out to kill civilians, even if it cannot be established that all members killed civilians themselves.
- JCE II requires that members knowingly participate in a system of organized ill treatment. For example, JCE II may apply to guards, administrators, or cooks at a concentration camp, even if they did not personally harm the victims of the camp.
- JCE III requires that the war crime was a natural and foreseeable consequence of a group’s actions, and that the members voluntarily assumed that risk. For example, JCE III may be used to charge members of a unit sent to remove civilians from their home with murder, provided the deaths of some civilians was a natural and foreseeable result of the removal process.
In any category, JCE is distinct from the doctrine of conspiracy in American criminal law. JCE requires the actual perpetration of the acts to have occurred, rather than just a meeting of the minds. However, like conspiracy, JCE does not require members of the group to be organized in an official military, political, or administrative structure, so long as their association with each other may be inferred from the facts of the case.
[Last updated in June of 2023 by the Wex Definitions Team]
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