1 See, e.g., Prosecutor v. Tadić, Appeals Chamber Judgement, Case No. IT-94-1-A, 15 July 1999, at para. 190 (‘Most of the time [international] 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.’). See generally E. van Sliedregt, Individual Criminal Responsibility in International Law (2012). Mark Osiel famously referred to crimes committed by the state during the Holocaust and its aftermath as ‘administrative massacre’ due to the extensive bureaucracy needed to carry out the crimes. Osiel, M. J., ‘Ever Again: Legal Remembrance of Administrative Massacre’, (1995) 144 University of Pennsylvania Law Review 463 CrossRefGoogle Scholar.

2 Sadat, L. and Jolly, J., ‘Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot’, (2014) 27 Leiden Journal of International Law 755 CrossRefGoogle Scholar, at 771. See also M. Aksenova, Complicity in International Law (2016).

3 See, e.g., Gibson, C., ‘Testing the Legitimacy of the Joint Criminal Enterprise Doctrine in the ICTY: A Comparison of Individual Liability for Group Conduct in International and Domestic Law’, (2008) 18 Duke Journal of Comparative & International Law 521 Google Scholar. As the United States Supreme Court has noted, ‘concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality’. Callanan v. United States, 364 U.S. 587, 593 (1961).

4 See generally Aksenova, supra note 2, at 53–80; van Sliedregt, supra note 1, at 35–7, 65–88; Iannelli v. United States, 420 U.S. 770, 778 (1975) (quoting Callanan v. United States, 364 U.S. 587, 593–4 (1961) (explaining that a ‘collective criminal agreement—[a] partnership in crime—presents a greater potential threat to the public than individual delicts’)).

5 The common law labels ‘parties to the crime’ those persons who collectively participate in the commission of a criminal offence before, during, and after the offence’s commission. W. R. LaFave, Criminal Law: Fifth Edition (2010), 701. See also Sadat, L. N., ‘Commentary, Prosecutor v. Kvoćka et al., Judgement (ICTY 2 Nov. 2001)’, in Klip, A. and Sluiter, G. (eds.), Annotated Leading Cases of International Criminal Tribunals (2005), 743 Google Scholar. See generally H. L. A. Hart and J. Gardner, Punishment and Responsibility: Essays on Philosophy of Law (2009).

6 See Aksenova, supra note 2; G. Fletcher, Basic Concepts of Criminal Law (1998); See van Sliedregt, supra note 1. Some common law jurisdictions may hold participants in group-based crime responsible for a separate inchoate crime, such as conspiracy. See, e.g., Criminal Law Act 1977, § 1.1 (England and Wales); Criminal Attempts and Conspiracy, Order 1983, Part IV (Northern Ireland). The United States Code contains dozens of criminal conspiracy provisions, including conspiracy to commit any other federal crime, see 18 U.S.C. § 371, and conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking, see 18 U.S.C. § 241 (civil rights conspiracies); 21 U.S.C. § 846 (drug trafficking conspiracies). These laws recognize the unique harms posed by group-based criminal conduct. Although it is often asserted that the civil law systems reject common law conspiracy doctrines, in fact Art. 450-1 of the French Criminal Code recognizes the notion of an association de malfaiteurs (criminal conspiracy); Art. 121-7 of the French Criminal Code also recognizes the doctrine of complicity. See generally J. Bell, S. Byron and S. Whittaker, Principles of French Law (2008), 230. See also Prosecutor v. Ieng Sary et al., Co-Prosecutor’s Appeal against the Judgment of the Trial Chamber in Case 002/01, Case No. 002/19-09-2007-ECCC/SC, 28 November 2014, at para. 50 (citing provisions on ‘individual criminal responsibility for unintended but foreseeable crimes arising out of joint criminal enterprise’ in criminal codes of Australia, Austria, Bangladesh, Bermuda, Botswana, Cambodia, Canada, Egypt, Ethiopia, Fiji, France, Germany, Ghana, Greece, India, Iraq, Israel, Japan, Kenya, Malawi, Malaysia, New Zealand, Nigeria, Pakistan, Papua New Guinea, Philippines, Poland, the Union of Soviet Socialist Republics, Seychelles, South Africa, South Korea, Sri Lanka, Tanzania, Thailand, Uganda, the United Kingdom, the United States of America, Uruguay, Western Samoa, and Zambia).

7 See, e.g., van Sliedregt, supra note 1; H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (2009); Eser, A., ‘Individual Criminal Responsibility’, in Cassese, A. et al. (eds.), The Rome Statute of the Criminal Court: A Commentary (2002)Google Scholar.

8 See, e.g., 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Art. 7 [hereinafter ICTY Statute]; 1994 Statute of the International Tribunal for Rwanda, Art. 6 [hereinafter ICTR Statute]. Compare 1998 Rome Statute of the International Criminal Court, 2187 UNTS 137, Arts. 25, 28. 30 [hereinafter Rome Statute].

9 See, e.g., van Sliedregt, E., ‘The Curious Case of International Criminal Liability’, (2012) 10 Journal of International Criminal Justice 1171 CrossRefGoogle Scholar; Stewart, J. G., ‘The End of “Modes of Liability”’, (2012) 25 Leiden Journal of International Law 165 CrossRefGoogle Scholar; Ohlin, J. D., ‘Joint Intentions to Commit International Crimes’, in Tanguay-Renaud, F. and Stribopoulos, J. (eds.), Rethinking Criminal Law Theory (2011)Google Scholar; Ohlin, J. D., ‘Three conceptual problems with the doctrine of Joint Criminal Enterprise’, (2007) 5 Journal of International Criminal Justice 69 CrossRefGoogle Scholar; Danner, A. and Martinez, J., ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, (2005) 93 California Law Review 75 Google Scholar.

10 There are some notable exceptions but much of this commentary is limited to an analysis of the jurisprudence of the ad hoc criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) or the Special Court for Sierra Leone (SCSL), and predates some of the critical cases we examine here or focuses on other modes of liability like complicity or superior responsibility. See, e.g., S. Brammertz and M. Jarvis (eds.), Prosecuting Conflict-Related Sexual Violence at the ICTY (2016), Ch. 7 (focusing on the practice at the ICTY); A. Pérez, ‘Here to Stay? Extended Liability for Joint Criminal Enterprise as a Tool for Prosecuting Mass SGBV Crimes’, 12 June 2015, ASIL Insight, available at www.asil.org/insights/volume/19/issue/13/here-stay-extended-liability-joint-criminal-enterprise-tool-prosecuting (analysing use of JCE III in ICTR case law); C. Eboe-Osuji, International Law and Sexual Violence in Armed Conflicts (2012), Ch. 2 (focusing on superior responsibility); Oosterveld, V., ‘Gender and the Charles Taylor Case at the Special Court for Sierra Leone’, (2012) 19 William & Mary Journal of Women & the Law 7 Google Scholar (focusing on complicity liability for SGBV crimes in case against Charles Taylor); Haffajee, R. L., ‘Prosecuting Crimes of Rape and Sexual Violence at the ICTR: the Application of Joint Criminal Enterprise Theory’, (2006) 29 Harvard Journal of Law & Gender 201 Google Scholar (focusing on the jurisprudence of the ICTR); P. Sellers, ‘Individual(s’) Liability for Collective Sexual Violence’, in K. Knop (ed.), Gender and Human Rights (2004), 153 (focusing on joint criminal enterprise in ICTY jurisprudence). While other commentators have drawn attention to how this issue has been addressed by the ICC, much of that commentary does not examine the application of group forms of liability to SGBV crimes in any significant detail, and also predates some of the critical cases we examine here and/or focuses on other modes of liability or prosecutorial strategies. See, e.g., M. Bergsmo (ed.), Thematic Prosecution of International Sex Crimes (2018) (including several chapters that make some reference to modes of liability but for purposes of discussing case selection and prosecutorial strategies); Schwartz, S., ‘Wartime Sexual Violence as More than Collateral Damage: Classifying Sexual Violence as Part of a Common Criminal Plan in International Criminal Law’, (2017) 40 University of New South Wales Law Journal 57 Google Scholar (published before Bemba’s acquittal by the ICC Appeal Chamber); Kortfält, L., ‘Sexual Violence and the Relevance of the Doctrine of Superior Responsibility in the Light of the Katanga Judgment at the International Criminal Court’, (2015) 84 Nordic Journal of International Law 533 CrossRefGoogle Scholar (focusing on application of superior responsibility to SGBV crimes); Stahn, C., ‘Justice Delivered or Justice Denied?: The Legacy of the Katanga Judgment’, (2014) 12 Journal of International Criminal Justice 809 CrossRefGoogle Scholar, at 820–7 (raising in one paragraph – but not discussing in any significant detail – the question of whether the standard required to convict Katanga for SGBV crimes was higher than the standard applied to other crimes).

11 Prosecutor v. Jean-Pierre Bemba Gombo, Judgement on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, Case No. ICC-01/05-01/08 A, A.Ch., 8 June 2018.

12 For a gender analysis of the Bemba case, see SáCouto, S. and Sellers, P. V., ‘The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes?’, (2019) 27 William & Mary Bill of Rights Journal 599 Google Scholar.

13 Tadić Appeals Judgement, supra note 1.

14 Prosecutor v. Bosco Ntaganda, Judgment, Case No. ICC-01/04-02/06, T. Ch. VI, 8 July 2019. The Trial Chamber convicted Bosco Ntaganda of rape and sexual slavery as an indirect co-perpetrator pursuant to Art. 25(3)(a) of the Rome Statute. Ibid. However, the judgment is subject to appeal and it is unclear whether the Appeals Chamber, if seized of the case, will affirm the Trial Chamber’s approach. Moreover, the difficulties we identify in the Court’s approach to attributing liability for sexual violence crimes are recurrent and extend beyond Art. 25(3) to the Court’s interpretation of command responsibility under Art. 28. Indeed, while a unanimous Trial Chamber originally convicted Jean-Pierre Bemba Gombo of SGBV crimes under command responsibility, see Prosecutor v. Jean-Pierre Bemba Gombo, Judgment pursuant to Art. 74 of the Statute, Case No. ICC-01/05-01/08-3343, T. Ch. III, 21 March 2016, at para. 752, the Appeals Chamber reversed his conviction on 8 June 2018, see Bemba Appeals Chamber Judgment, supra note 11. Thus, the ICC has yet to see a successful conviction through appeal for SGBV crimes. See also SáCouto and P. V. Sellers, ‘The Bemba Appeals Chamber Judgment’, supra note 12.

15 See Askin, K. D., ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’, (2003) 21 Berkeley J. Int’l Law 288 Google Scholar, at 302 [hereinafter Askin, Prosecuting Wartime Rape]; K. D. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1999), 42–4 ; Askin, K. D., ‘Treatment of Sexual Violence in Armed Conflict: A Historical Perspective and the Way Forward’, in de Brouwer, A., et al. (eds.), Sexual Violence as an International Crime: Interdisciplinary Approaches (2013)Google Scholar; Sellers, P. V., ‘The Context of Sexual Violence: Sexual Violence as Violations of International Humanitarian Law’, in McDonald, C. K. and Goldman, S. (eds.), Substantive and Procedural Aspects of International Criminal Law (2000), 263 Google Scholar, at 274. Notwithstanding these developments, the Tokyo Tribunal did not prosecute the sexual enslavement of females compelled into the ‘comfort’ system. See, Sellers, P. V., ‘Wartime Female Slavery: Enslavement?’, (2011) 44 Cornell University Journal of International Law 115 Google Scholar.

16 See Plesch, D., SáCouto, S. and Lasco, C., ‘The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today’, (2014) 25 Criminal Law Forum 349 CrossRefGoogle Scholar.

17 See, e.g., A.-M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and ICTR (2005), 4–9; Rape as a Weapon of War: Accountability for Sexual Violence in Conflict, Hearing Before the Subcomm. on Human Rights and the Law of the S. Comm. on the Judiciary, 110th Cong. (2008) (statement of Dr. Kelley Dawn Askin, Senior Legal Officer, Open Society Justice Initiative) (‘I was shocked that as we approached the end of the 20th century, there was still confusion about whether international law prohibited wartime sexual violence. There was widespread acknowledgment that atrocities such as massacres, torture, and slave labour were prosecutable, but there was scepticism, even by legal scholars and military officials, as to whether rape was sufficiently serious to be prosecutable in an international tribunal set up to redress the worst crimes.’); Steains, C., ‘Gender Issues’, in Lee, R. (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 357 Google Scholar, at 358.

18 See, e.g., Askin, ‘Prosecuting Wartime Rape’, supra note 15.

19 See infra Sections 2 & 3.

20 L. N. Sadat, ‘International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces’, 21 May 2004, ASIL Insights, available at www.asil.org/insights/volume/8/issue/10/international-legal-issues-surrounding-mistreatment-iraqi-detainees.

21 A. Peterman, T. Palermo and C. Bredenkamp, ‘Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo’, June 2011, American Journal of Public Health, available at ajph.aphapublications.org/doi/abs/10.2105/AJPH.2010.300070.

22 ‘“They Said We Are Their Slaves”: Sexual Violence by Armed Groups in the Central African Republic’, Human Rights Watch, 5 October 2017, available at www.hrw.org/report/2017/10/05/they-said-we-are-their-slaves/sexual-violence-armed-groups-central-african.

23 ‘Iraq: ISIS Escapees Describe Systematic Rape’, 14 April 2015, Human Rights Watch, available at www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

24 ‘“I lost my dignity”: Sexual and gender-based violence in the Syrian Arab Republic’, Conference room paper of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/37/CRP.3, 8 March 2018, available at www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A-HRC-37-CRP-3.pdf.

25 See, e.g., Crenshaw, K., ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’, (1993) 43 Stanford Law Review 1241 CrossRefGoogle Scholar.

26 Charlesworth, H., Chinkin, C. and Wright, S., ‘Feminist Approaches of International Law’, (1991) 85 American Journal of International Law 613 CrossRefGoogle Scholar, at 615.

27 See supra note 17 and accompanying text.

28 ICTY Statute, supra note 8, Art. 7(1) (providing that a person who ‘planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation of execution of a crime … shall be individually responsible for the crime’).

29 Tadić, supra note 1, at para. 190. The Appeals Chamber interchangeably uses the terms ‘common design’, ‘common purpose’, and ‘joint criminal enterprise’.

30 Ibid., at paras. 190–2 (citing, inter alia, United Nations Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704 (3 May 1993)).

31 Cassese, A., ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’, (2007) 5 Journal of International Criminal Justice 109 CrossRefGoogle Scholar.

32 Tadić, supra note 1, at para. 191.

33 Ibid., at paras. 191–2; Prosecutor v. Karemera et al., Trial Chamber Decision on the Preliminary Motions by the Defence of Joseph Nzirorera, Édouard Karemera, André Rwamakuba and Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise, Case No. ICTR-98-44-T, T. Ch. III, 11 May 2004, at para. 36, available at www.legal-tools.org/doc/56eebe/.

34 Tadić, supra note 1, at para. 191. See also Prosecutor v. Ieng Sary et al., ECCC Decision on Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC/OCIJ (PTC35), 20 May 2010 [hereinafter ECCC PTC JCE Decision], at para. 55.

35 Tadić, supra note 1, at para. 192.

36 Ibid.

37 Annexes to the Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), UN SCOR, 49th Sess., UN Doc. S/1994/674/Add.2, at para. 22, 31(1994), at 31 (noting that the Yugoslav conflict ‘was characterized by a multiplicity of combatant forces … sometimes operating under no established command and control’).

38 Sadat and Jolly, supra note 2, at 758. The gap-filling was needed as the Statute was silent regarding any form of common plan liability, a seemingly clear omission (and flaw) in the drafting.

39 See Tadić, supra note 1, at paras. 195–228 (canvassing national legislation and post-Second World War cases).

40 See Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, Art. III (‘The following acts shall be punishable … (b) conspiracy to commit genocide’).

41 See ILC Draft Codes of Crimes against the Peace and Security of Mankind, YILC 1991, Vol I, Ch. 2, Art. 3(2) [hereinafter 1991 Draft Code of Crimes]; ILC Draft Codes of Crimes against the Peace and Security of Mankind, YILC 1996, Vol. II (Part Two), at 17, Art. 2 [hereinafter 1996 Draft Code of Crimes]. The ‘common plan’ language was used in the commentary to these Articles of both the 1991 and 1996 draft codes. See 1991 Draft Code of Crimes, Ch. 2, Art. 3(2), comment 4; 1996 Draft Code of Crimes, Art. 2, comment 15.

42 International Convention for the Suppression of Terrorist Bombings, UN GAOR, 52nd Sess., Annex, UN Doc. A/RES/52/164 (1998), Art. 2(3) [hereinafter Terrorist Bombing Convention].

43 Tadić, supra note 1, at para. 227.

44 The plan need not have been previously arranged or formulated, but may ‘materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise’. Tadić, supra note 1, at para. 227.

45 The Appeals Chamber noted in Tadić that the participation may either take the form of committing a specific crime under the Statute, or, importantly in this case, ‘may take the form of assistance in, or contribution to, the execution of the common plan or purpose’. Tadić, supra note 1, at para. 227.

46 JCE I exists when all participants enter into a common plan, share the intent to commit a crime, and one or more actually perpetrates the crime. Tadić, supra note 1, at paras. 227–8.

47 JCE II exists when an organized system of ill-treatment occurs, and the accused is aware of the nature of the system, intends to further the system of ill-treatment and in some way actively participates in enforcing the system. Tadić, supra note 1, at para. 228; see also Prosecutor v. Krajišnik, Appeals Chamber Judgement, Case No. IT-00-39-A, A.Ch., 17 March 2009.

48 JCE III requires the participation of an accused in either a basic JCE I or in a systemic JCE II scenario, and recognizes criminal liability for crimes outside the original criminal plan or system of ill-treatment that were the natural and foreseeable consequence of that plan or system, if the accused willingly assumed the risk they would occur. Tadić, supra note 1, at para. 228.

49 Ibid.

50 Ibid.

51 Ibid. See also Prosecutor v. Miroslav Kvočka et al., Appeals Chamber Judgement, Case No. IT-98-30/1-A, A.Ch. 28 February 2005, at para. 208.

52 Tadić, supra note 1, at paras. 220, 228.

53 Ibid.

54 See, e.g., C. Eboe-Osuji, Rape and superior responsibility: International criminal law in need of adjustment, International Criminal Court Guest Lecture Series of the Office of the Prosecutor, International Criminal Court (2005), 6 (‘the theory of individualistic opportunism proceeds … from the … premise that rape is a crime of opportunity which, during conflict, is frequently committed by arms-bearing men, indulging their libidos, under cover of the chaotic circumstances of armed conflict’); Askin, Prosecuting Wartime Rape, supra note 15, at 296–7 (‘When customary law began prohibiting rape crimes … sexual violence did not tend to be officially encouraged, but the crimes were largely ignored or tolerated by commanders, many of whom believed sexual violence before a battle increased the soldiers’ aggression or power cravings and that rape after a battle was a well-deserved reward, a chance to release tensions and relax. As rape became explicitly prohibited, the crimes were still deemed mere inevitable consequences or side effects of armed conflict and were rarely punished. Efforts to enforce the prohibitions against rape generated little interest, as most considered sexual violence incidental by products of the conflict.’); Sellers, P. V. and Okuizumi, K., ‘Intentional prosecution of sexual assaults (Symposium: Prosecuting International Crimes, An Inside View)’, (1997) 7 Transnational Law & Contemporary Problems 45 Google Scholar, supra note 54, at 61–2 (noting that ‘[s]exual assaults committed during armed conflict are often rationalized as the result of a perpetrator’s lust, libidinal needs, or stress’). See also S. Brownmiller, Against Our Will: Men, Women and Rape (1975).

55 See Cassese, supra note 31.

56 Prosecutor v. Krstić, Trial Chamber Judgement, Case No IT-98-33-T, T. Ch., 2 August 2001.

57 Ibid., at paras. 150–4.

58 Ibid., at paras. 38–40.

59 Ibid., at para. 155.

60 Ibid., at para. 616.

61 Ibid. Similarly, the Krstić Appeals Chamber, responded to the defence’s ground of appeal on conviction of the ‘other’ crimes by opining that, ‘[G]iven Kristić’s role in causing the humanitarian crisis in Potočari, the issuance of orders directing that civilians not be harmed is not sufficient to establish that the crimes which occurred were not a natural and foreseeable consequence of the (JCEI) plan to forcibly transfer civilians’. Prosecutor v. Krstić, Appeal Chamber Judgement, Case No. IT-98-33-A, A. Ch., 19 April 2004, at para. 149.

62 See, e.g., Prosecutor v. Šainović et al., Appeals Chamber Judgement Case No. IT-05-87-A, A. Ch., 23 January 2014, at paras. 1550–92; Prosecutor v. Đorđević, Appeals Chamber Judgement, Case No IT-05-87/1-A, A.Ch., 27 January 2014, at paras. 904–29. For another example of contextualization of SGBV crimes, but in the context of a JCE II case, see Prosecutor v. Kvočka et al., Trial Chamber Judgement, Case No. IT-98-30/1-T, T.Ch., 2 November 2001. There, five accused were convicted of SGBV crimes due in part to a recognition that the environment in which the violence occurred rendered the SGBV crimes intended, if not foreseeable. As the Chamber explained: ‘[a]pproximately 36 women were held in detention, guarded by men with weapons who were often drunk, violent and physically and mentally abusive and who were allowed to act with virtual impunity. Indeed it would be unrealistic and contrary to all rational logic to expect that none of the women held in Omarska, placed in circumstances rendering them especially vulnerable, would be subjected to rape or other forms of sexual violence. This is particularly true in light of the clear intent of the [JCE II] criminal enterprise to subject the target group to persecution through such means as violence and humiliation’. Ibid., at para. 327.

63 See, e.g., Prosecutor v. Karemera, Appeals Judgement, Case No.ICTR-98-44-A, A.Ch., 28 September 2014.

64 Prosecutor v. Sainović et al., Judgement, Case No. IT-05-87-T, T. Ch., 26 February 2009 [hereinafter Šainović et al. Trial Judgement].

65 Ibid.

66 Ibid., vol. 3, at paras. 472, 1135; vol. 2, at paras. 622, 688, 874, 1187, 1224.

67 Ibid. The Trial Chamber convicted another co-accused, Nebojša Pavković, of persecutions through sexual assaults under JCE III, ibid., vol. 3, at paras. 785, 788, which was later upheld on appeal. Šainović et al. Appeals Judgement, supra note 62, at para. 1602.

68 Šainović et al. Trial Judgement, supra note 64, vol. 3, at paras. 469, 472, 1133, 1135.

69 Ibid., at para. 1591.

70 Ibid., at paras. 1581–2, 1591–2, 1602.

71 Ibid.

72 Šainović et al. Appeals Judgement, supra note 62, at paras. 1582, 1592, 1602.

73 Prosecutor v. Karadžić, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, Case No. IT-95-5/18-T, A.Ch., 25 June 2009, at para. 18 [hereinafter Karadžić JCE Appeals Decision].

74 As Cassese noted, ‘(r)esorting to JCE III would be intrinsically ill-founded when the crime committed requires a “special” or specific intent. It would thus be in appropriate to apply the extended form of JCE to charges, for example of genocide, persecution or aggression’. A. Cassese, et al. (eds.), Cassese’s International Criminal Law (2013), Ch. 9, 172. Yet, neither Cassese nor other commentators raised objections to Krstić’s conviction for persecution, a specific intent crime that consisted of SGBV acts. See discussion of Krstić case supra Section 2.2.

75 Đorđević Appeals Chamber Judgement, supra note 62.

76 Prosecutor v. Đorđević, Trial Judgement, Case No. IT-05-87/1-T, T. Ch. II, 23 February 2011 [hereinafter Đorđević Trial Chamber Judgement].

77 Ibid., at para. 2230.

78 Ibid., at paras. 1793–7.

79 The prosecution appealed the acquittal of the rapes as persecutory acts. Đorđević countered that the rapes were not foreseeable and that no evidence pointed to him being ‘aware of the possibility that these crimes would occur’. Đorđević Appeals Chamber Judgement, supra note 62, at para. 917.

80 Ibid.

81 Ibid., at para. 897.

82 Ibid., at para. 902.

83 See Đorđević Appeals Chamber Judgement, supra note 62, at para. 907. The Appeals Chamber quoted appellate jurisprudence noting that foreseeability ‘is not satisfied by implausibly remote scenarios. Plotted on a spectrum of likelihood, the JCE III mens rea standard does not require an understanding that a deviatory crime would probably be committed; it does, however, require that a crime could be committed is sufficiently substantial as to be foreseeable to an accused’. Ibid., (quoting Karadžić JCE Appeals Decision, supra note 73).

84 Ibid., at para. 921.

85 Ibid.

86 Đorđević Appeals Chamber Judgement, supra note 62, at para. 922.

87 Ibid., at para. 924.

88 Ibid., at para. 925.

89 Ibid., at para. 926.

90 Ibid.

91 Prosecutor v. Karemera, Trial Judgement, Case No. ICTR-98-44-T, T. Ch. III, 2 February 2012 [hereinafter Karemera Trial Judgement].

92 Ibid.

93 Ibid., at paras. 1649–54.

94 The Prosecutor charged the accused for all rapes and sexual assaults that occurred in Rwanda from early to mid-April 1994 to June 1994 as genocide. The Trial Chamber, however, found Karemera and Ngirumpatse responsible only for the rapes and sexual assaults committed by the Kigali and Gisenyi Interahamwe during the genocide. Ibid., at paras. 1671, 1683. However, this limited sexual assault crime-base did not apply to their JCE III liability, which did not depend on a superior-subordinate relationship.

95 Ibid., at paras. 1665–71, 1683–4. Each defendant received a sentence of life imprisonment. Ibid., at paras. 1762–3.

96 Ibid., at para. 1477.

97 Prosecutor v. Karemera et al., Appeal Judgement, Case No. ICTR-98-44-A, A. Ch., 29 September 2014.

98 Ibid., at para. 623.

99 Ibid., at paras. 630–3.

100 Ibid., at para. 608.

101 Ibid.

102 See, e.g., Askin, Prosecuting Wartime Rape, supra note 15, at 340–3; SáCouto, S., ‘Gaps in gender-based violence jurisprudence of international and hybrid criminal courts: Can human rights law help?’, in Ngwena, C. and Durojaye, E. (eds.), Strengthening the protection of sexual and reproductive health and rights in the African region through human rights (2014 Google Scholar). See also D. Scheffer and A. Dinh, ‘The Pre-Trial Chamber’s Significant Decision on Joint Criminal Enterprise for Individual Responsibility’, 3 June 2010, Cambodia Tribunal Monitor, (arguing all three forms of JCE are customary international law).

103 Some critics have also, as mentioned above, expressed concerns about the ICTY’s methodology in ‘gap filling’ outside the express terms of the Statutes. See, e.g., Sluiter, G., ‘“Chapeau elements” of crimes against humanity in the jurisprudence of the United Nations ad hoc tribunals’, in Sadat, L. (ed.), Forging a Convention for Crimes Against Humanity (2011)Google Scholar.

104 See, e.g., Prosecutor v. Simić et al., Separate and Partly Dissenting Opinion of Judge Per-Johan Lindholm, Case No. IT-95-9-T, T. Ch. II, 17 October 2003, paras. 2–5; Prosecutor v. Ðorđević, Dissenting Opinion of Judge Tuzmukhamedov, Case No. IT-05-87/1-A, A. Ch., 27 January 2014, at para. 66. See also Prosecutor v. Stakić, Trial Judgement, Case No. IT-97-24-T, T.Ch. II, 31 July 2003, at paras. 436–8 (preferring co-perpetration to JCE liability since co-perpetration ‘is closer to what most legal systems understand as “committing” and avoids the misleading impression that a new crime not foreseen in the Statute of this Tribunal has been introduced through the backdoor’.). Judges at other tribunals have also taken issue with JCE III. See, e,g., Prosecutor v. Sesay, Kallon and Gbao (RUF), Dissenting Opinion of Judge Fisher, Case No. SCSL-04-15-A, SCSL Appeals Chamber Judgment, 26 October 2009, at para. 19; ECCC PTC JCE Decision, supra note 34.

105 See, e.g., Danner and Martinez, supra note 9; Marsh, L. and Ramsden, M., ‘Joint Criminal Enterprise: Cambodia’s Reply to Tadić’, (2011) 11 International Criminal Law Review 148 CrossRefGoogle Scholar; Ohlin, ‘Three Conceptual Problems with the doctrine of Joint Criminal Enterprise’, supra note 9, at 76; Ambos, K., ‘Joint Criminal Enterprise and Command Responsibility’, (2007) 11 Journal of International Criminal Justice 5 Google Scholar; Powles, S., ‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?’, (2004) 2 Journal of International Criminal Justice 606 CrossRefGoogle Scholar; Easterday, J., ‘Obscuring Joint Criminal Enterprise Liability: The Conviction of Augustine Gbao by the Special Court of Sierra Leone’, (2009) 3 Berkeley Journal of International Law Publicist 36 Google Scholar.

106 See ECCC PTC JCE Decision, supra note 34, at paras. 79–82. The Trial Chamber and Supreme Court Chamber issued similar decisions, finding insufficient evidence to support the existence of JCE III under customary international law as of 1975, the start the Extraordinary Chamber’s temporal jurisdiction. See Prosecutor v. Ieng Sary et al., Trial Chamber Decision on the Applicability of Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC/TC, T.Ch., 12 Sept. 2011, at paras. 27–35 [hereinafter ECCC TC JCE Decision]; Prosecutor v. Ieng Sary et al., Supreme Court Chamber Appeal Judgment, Case No. 002/19-09-2007-ECCC/SCC, Supreme Court Ch., 23 November 2016, at para. 807 [hereinafter ECCC SCC Appeal Judgement].

107 ECCC PTC JCE Decision, supra note 34, at para. 80.

108 Ibid., at para. 82. The Trial Chamber also found that state practice in this area lacked sufficient uniformity to be considered a general principle of law. See ECCC TC JCE Decision, supra note 106, at para. 37.

109 Summers, M., ‘The Problem of Risk in International Criminal Law’, (2014) 13 Washington University Global Studies Law Review 557 Google Scholar, at 674. See also Danner and Martinez, note 9, at 108–9.

110 Prosecutor v. Martić, Separate Opinion of Judge Schomburg, Case No. IT-95-11-A, A.Ch., 8 October 2008, at paras. 2, 5 (describing JCE as imposing criminal liability ‘primarily … [for] membership in a group’). See also Manacorda, S. and Meloni, C., ‘Indirect perpetration versus joint criminal enterprise: Concurring approaches in the practice of international criminal law?’, (2011) 9 Journal International Criminal Justice 159 CrossRefGoogle Scholar, at 166–7; Danner and Martinez, supra note 9, at 133, 137.

111 Badar, M., ‘“Just convict everyone!” - Joint perpetration: From Tadić to Stakić and back again’, (2006) 6 International Criminal Law Review 302 CrossRefGoogle Scholar.

112 The ICTY has considered and rejected a number of additional challenges to the JCE doctrine raised by defence counsel after Tadić, including, inter alia, in Prosecutor v. Stakić, Appeals Chamber Judgement, Case No. IT-97-24-A, A.Ch., 22 March 2006, at paras. 99–103 (rejecting the contention that imposition of dolus eventualis as the mens rea for extended JCE violated the nullum crimen sine lege principle) and Prosecutor v. Milan Martić, Appeal Judgement, Case No. IT-95-11-A, A.Ch., 8 October 2008, at para. 36 (dismissing the argument that the dolus eventualis mens rea requirement of JCE III necessarily requires a reduced sentence).

113 See, e.g., Prosecutor v. Ieng Sary et al., Co-Prosecutor’s Appeal against the Judgment of the Trial Chamber in Case 002/01, supra note 6.

114 It is worth noting, however, that virtually all of the doctrinal criticism – and judicial dissents – discussed earlier post-date the adoption of the Statute in 1998.

115 Rome Statute, supra note 8, Art. 25.

116 Saland, P., ‘International Criminal Law Principles’, in Lee, R. (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 198 Google Scholar.

117 See Working Paper submitted by Canada, Germany, Netherlands, and the United Kingdom, UN Doc. A/AC.249/1997/WG.2/DP.1 (1997).

118 See van Sliedregt, supra note 1, at 64–5.

119 Sadat and Jolly, supra note 2.

120 Ibid. See also W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010), 424 (‘[c]oncepts and words in one system did not necessarily have the same connotations as they did in others’). C. Bassiouni, Introduction to International Criminal Law: 2nd revised edition (2013), 286–7 (‘many principles of criminal responsibility contained in the Statute reflect either a common law or civilist approach, with the choice between the two depending on the nature of diplomatic negotiations rather than a comparative legal analysis’).

121 See generally K. Ambos, ‘Article 25: Individual Criminal Responsibility’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), 743; G. Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’, (2007) 5 Journal of International Criminal Justice 953, at 956–7. See also Yanev, L. and Kooijmans, T., ‘Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory’, (2013) 13 International Criminal Law Review 789 CrossRefGoogle Scholar, at 804 (suggesting that the travaux préparatoires indicate that the drafters aimed to differentiate between principals and accessories on the basis that an early working paper submitted by Canada (UN Doc. A/AC.249/L.4) contained a draft article on ‘principals’ and a separate one on ‘the responsibility of other persons in the completed crimes of principals’). However, Art. 25 in its final form merges all modes of liability into the one provision and does not contain the language of ‘principals’ and ‘the responsibility of other persons in the completed crimes of principals’. It is thus arguable that the negotiators intended to move away from a strict principal/accessory distinction by actually removing such specific language.

122 See Eser, supra note 7, at 786–8.

123 Further, it has been argued by some scholars that ordering (under para. 3(b)) is better categorized as belonging to para. 3(a) (commission ‘through another person’). See Ambos, supra note 121, at 765; Eser, supra note 7, at 797.

124 See Schabas, supra note 120, at 431.

125 The Rome Statute was adopted in July 1998, whereas JCE was developed in the Tadić case, which was decided by the ICTY Appeals Chamber in July of 1999. See Tadić, supra note 1.

126 See Terrorist Bombing Convention, supra note 42, at Art. 2(3).

127 See Saland, supra note 116, at 199–200 (‘[w]e were helped by the successful negotiations in 1997 of the Convention for the Suppression of Terrorist Bombings, which had been adopted by consensus. In Rome, it was easy to reach agreement to incorporate, with slight modifications, the text from the Convention which we now find in paragraph 3(d) of the Article 25 of the Rome Statute’). See also Weigend, T., ‘Intent, Mistake of Law, and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’, (2008) 6 Journal of International Criminal Justice 471 CrossRefGoogle Scholar, at 477–8; Werle, supra note 121, at 970–1, 974–5 (arguing Art. 25(3)(d) is a subsidiary mode of participation yielding the weakest form of liability but that it may also broadly cover acts that warranted liability under the ICTY’s case law on JCE).

128 See Rome Statute, supra note 8, Art. 25(3)(d).

129 E. van Sliedregt, Lecture, Siracusa (Italy), 30 May 2018.

130 Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, Case No. ICC-01/04-01/06-2842, T. Ch. I, 14 March 2012 [hereinafter Lubanga Trial Judgment].

131 Ibid., at paras. 918–33, 976–1006. See in particular at para. 999, n. 2705 (citing a long line of the Court’s jurisprudence in support of its view that ‘the contribution of the co-perpetrator must be essential’).

132 Ibid., at para. 981.

133 Ibid., at para. 999.

134 See Prosecutor v. Germain Katanga, Judgment pursuant to article 74 of the Statute, Case No. ICC-01/04-01/07-3319, T. Ch. II, 7 March 2014, [hereinafter Katanga Trial Chamber Judgment].

135 Ibid., at para. 1410–11.

136 The control of the crime theory began appearing in Pre-Trial Chamber decisions in the Lubanga Decision on the Confirmation of Charges. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Case No. ICC-01/04-01/06, PTC I, 29 January 2012.

137 Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, Separate Opinion of Judge Adrian Fulford, Case No. ICC-01/04-01/06-2842, T. Ch. I, 14 March 2012, [hereinafter Lubanga Trial Judgment (Fulford Opinion)].

138 Prosecutor v. Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert, Case No. ICC-01/04-02/12, T. Ch. II, 18 December 2012, [hereinafter Ngudjolo Trial Judgement (Van den Wyngaert Opinion)].

139 See Sadat and Jolly, supra note 2.

140 See in particular, Judge Wolfgang Schomburg’s separate opinion in Prosecutor v. Gacumbitsi, where he argued for the control of the crime theory to be used at the ICTR. Prosecutor v. Gacumbitsi, Judgement, Separate Opinion of Judge Wolfgang Schomburg on the Criminal Responsibility of the Appellant for Committing Genocide, Case No. ICTR-2001-64-A, A. Ch., 7 July 2006.

141 See Sadat and Jolly, supra note 2.

142 Indeed, three defence counsel who represented different accused before international tribunals confirmed that they could not recall a single case in which an accused had been convicted on the basis of JCE III that they felt amounted to a miscarriage of justice. Discussions with defence counsel, in The Hague (28, 29 May and 6 June 2019) [hereinafter Defence counsel Hague discussions].

143 Note that, as discussed infra, the Trial Chamber in Ntaganda found that the accused had control over the crime, see infra notes 257, 258 and accompanying text, and thus did not need to consider his liability under Art. 25(3)(d).

144 In the confirmation of charges decision, the rape and sexual slavery charges were the only crimes not confirmed unanimously as Dissenting Judge Anita Ušacka found that although there were substantial grounds to believe that members of Katanga’s militia had committed rape and sexual slavery after the Bogoro attack, there was insufficient evidence linking Katanga to these crimes. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, Partly Dissenting Opinion of Judge Anita Ušacka, Case No. ICC-01/04-01/07-717, PTC I, 30 September 2008, 222–4, at paras. 27–9 [hereinafter Katanga and Ngudjolo Decision on the Confirmation of Charges].

145 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, Case No. ICC-01/04-01/07-3319, T. Ch. II, 21 Nov. 2012 [hereinafter Katanga Regulation 55 Decision]. The decision to consider Art. 25(3)(d)(ii) liability was intended to apply to all crimes except using child soldiers to participate in hostilities. Ibid.

146 Ibid., at paras. 5–7. Of course, the difficulty of recharacterizing the mode of liability could have been avoided had earlier jurisprudence not (erroneously) insisted that the Prosecutor choose only one form of criminal participation for the case, and simply allowed the charges to be brought in the alternative (as is now permitted). See Sadat, L. N., ‘Crimes Against Humanity in the Modern Age’, (2013) 107 American Journal of International Law 334 CrossRefGoogle Scholar.

147 See Katanga Trial Chamber Judgement, supra note 134, at paras. 1383–96, 1417–20.

148 Ibid., at paras. 1410–11.

149 Ibid., at para. 1420. Significantly, this restrictive interpretation of Art. 25(3)(a) is likely to serve as a particularly high bar for sexual violence charges, as even if the first of these criteria were met, it will likely be difficult to prove that those accused of such crimes ‘unquestionably … conceived the crime, oversaw its preparation at different hierarchical levels, and controlled its performance and execution’, See ibid., at para. 1412, given that sexual violence – even when widespread – often occurs because it is tolerated and permitted rather than explicitly ordered or planned.

150 Rome Statute, supra note 8, Art. 25(3)(d).

151 Ibid.

152 See Katanga Trial Chamber Judgement, supra note 134, at para. 1618.

153 Ibid., at para. 1619. This may be why it has not engendered the same kind of critique as JCE III.

154 Ibid., at para. 1635.

155 Ibid., at paras. 1627, 1641.

156 Ibid., at para. XII, 7.

157 Ibid., at paras. 988–99, 1002–19.

158 Ibid., at paras. 1657–64.

159 Ibid., at para. 1654.

160 Ibid., at para. 1656.

161 Ibid., at paras. 1658–62.

162 Ibid., at para. 1663.

163 Ibid.

164 Ibid., at para. 1664 (emphasis added).

165 This conclusion is also surprising in light of the Pre-Trial Chamber’s earlier findings that Katanga knew ‘that, as a consequence of the common plan, rape and sexual slavery of women and girls would occur in the ordinary course of the events’. Katanga and Ngudjolo Decision on the Confirmation of Charges, supra note 144, at para. 567. Significantly, according to the Pre-Trial Chamber, this knowledge ‘was substantiated by the fact that:

1. (i)

   (i) rape and sexual slavery against of women and girls constituted a common practice in the region of Ituri throughout the protracted armed conflict;

2. (ii)

   (ii) such common practice was widely acknowledged amongst the soldiers and the commanders;

3. (iii)

   (iii) in previous and subsequent attacks against the civilian population, the militias led and used by the suspects to perpetrate attacks repeatedly committed rape and sexual slavery against women and girls living in Ituri;

4. (iv)

   (iv) the soldiers and child soldiers were trained (and grew up) in camps in which women and girls were constantly raped and kept in conditions to ease sexual slavery;

5. (v)

   (v) Germain Katanga, Mathieu Ngudjolo Chui and their commanders visited the camps under their control, frequently received reports of the activities of the camps by the camps commanders under their command, and were in permanent contact with the combatants during the attacks, including the attack on Bogoro;

6. (vi)

   (vi) the fate reserved to captured women and girls was widely known amongst combatants; and

7. (vii)

   (vii) the suspects and the combatants were aware, for example, which camps and which commanders more frequently engaged in this practice.’

Ibid., at paras. 567–8. Based on this, the Chamber concluded that when the accused ‘planned, ordered and monitored the attack on Bogoro and on other villages inhabited mainly by Hema population, the suspects knew that rape and sexual slavery would be committed in the ordinary course of the events’. Katanga and Ngudjolo Confirmation Decision, supra note 144, at para. 569.

166 See Katanga Trial Chamber Judgement, supra note 134, at paras. 1624–31. This is consistent with customary international law, where ‘there is no requirement that sexual violence occur on a large scale to be part of a common criminal purpose’. See S. Brammertz and M. Jarvis (eds.), Prosecuting Conflict-Related Sexual Violence at the ICTY (2016), 6. While scale and prior use of the same acts may help show that sexual violence was part of the common purpose, other factors may also be relevant and sufficient to show this, such as the role sexual violence played in achieving the objectives of the JCE members. Ibid., at 5–7, 226. See also Jarvis, M., ‘Prosecuting Conflict-Related Sexual Violence Crimes: How Far We Have Progressed and Where Do We Go From Here: Some Thoughts Based on ICTY Experience’, in Stephens, D. and Babie, P. (eds.), Imagining law: essays in conversation with Judith Gardam (2016), 105 Google Scholar, at 121 (noting that in Prosecutor v. Stakić, for instance, the focus of the ICTY was not on scale or patterns, but on the objective of the JCE members and the role sexual violence played in achieving that objective).

167 Katanga Trial Chamber Judgement, supra note 134, at para. 1630.

168 Ibid., at para. 1664. Although the Chamber may have been using scale and previous commission of crimes as circumstantial evidence from which it could infer whether those crimes formed part of the common purpose, it does not examine – as its statement of the law suggests would be necessary – whether the sexual violence committed in Bogoro was, in fact, merely opportunistic. Had it asked this question and applied its own standard, it might have been prompted to take into account evidence it apparently failed to consider – such as the sexual enslavement of the victims, in some cases, for months after the attack – and conclude that the acts were not opportunistic.

169 Ibid., at paras. 841, 950.

170 Ibid., at paras. 988–99.

171 Ibid., at paras. 1002–21.

172 Ibid., at para. 1630.

173 Ibid., at para. 1626.

174 Katanga Trial Chamber Judgement, supra note 134, at para. 1625.

175 See, e.g., Stakić, Appeal Judgement, supra note 112, at paras. 73, 84.

176 See Stakić Trial Judgement, supra note 104, at paras. 234–6, 240–1, 244, 791–806, 826 (finding sexual violence committed in the Trnopolje, Keratrem, and Omarska prison camps in Prijedor was a critical part of the persecution campaign).

177 See also Kvočka Trial Judgement, supra note 62, at paras. 319–20, 327 (finding a system of ill-treatment at the Omarska camp in Prijedor which aimed to ‘persecute and subjugate non-Serb detainees’ through the commission of crimes, including rape, thus recognizing sexual violence as part of the common criminal purpose under JCE II). Although two of the accused’s convictions were overturned on appeal, these findings were upheld on appeal. Prosecutor v. Kvočka et al., Appeal Judgement, Case No. IT-98-30/1-A, A.Ch., 28 February 2005, at paras. 84–6.

178 See, e.g., Katanga Trial Chamber Judgement, supra note 134, at paras. 829, 1009.

179 B. Inder, ‘Partial Conviction of Katanga by ICC Acquittals for Sexual Violence and Use of Child Soldiers: The Prosecutor vs. Germain Katanga’, 7 March 2014, at 7, available at iccwomen.org/images/Katanga-Judgement-Statement-corr.pdf.

180 Rome Statute, supra note 8, Art. 25(3)(d).

181 See Katanga Trial Chamber Judgement, supra note 134, at para. 1642 (emphasis added).

182 Ibid., at para. 1641.

183 While the Chamber does not separately analyse the requirements of Art. 25(3)(d)(i), it is not clear that it would find the facts in Katanga sufficient to meet the requirements of that provision either, given its analysis of criminal purpose as requiring that the participants in the common purpose ‘harbour the same intent’, meaning ‘they must mean to cause the consequences which constitutes the crime or be aware that the crime will occur in the ordinary course of events’. See Katanga Trial Chamber Judgement, supra note 134, at para. 1627.

184 Ibid., at para. 1412.

185 As discussed in Section 4.2. below, however, the Ntaganda case demonstrates that this is not impossible. If the Court contextualizes the sexual violence and recognizes it as part of the common plan, as it did in Ntaganda, it may be feasible to use Art. 25(3)(a) in cases of sexual violence. See infra notes 249–257 and accompanying text. However, as noted earlier, that case is still subject to appeal and it is not clear that, if it chooses to review the case, the Appeal Chamber will affirm the Trial Chamber’s approach. Moreover, Ntaganda’s liability as an indirect co-perpetrator still required the Chamber to assess the accused’s control over the crime. While it found such control to be present in that case, cases in which sexual violence unfolds as part of the plan but evidence of the accused’s control over the crime is less compelling would still likely fail.

186 To the extent that one of the accused in the group is a military or civilian superior with effective control over his or her subordinates, another alternative could be to charge that accused with command responsibility under Art. 28 of the Rome Statute. As noted earlier, however, the one case in which an accused was convicted by a Trial Chamber for SGBV crimes under command responsibility was reversed by the Appeals Chamber, see Bemba Appeals Chamber Judgment, supra note 11, suggesting that some of the difficulties we identify in the Court’s application of Article 25 also apply to its approach to command responsibility. See SáCouto and Sellers, supra note 12. More significantly, perhaps, while superior responsibility or other modes of liability such as complicity might be used to hold perpetrators liable for SGBV crimes, these forms of liability do not always capture the full culpability of an accused. The principle of fair labeling – described as fairly representing the nature and magnitude of a wrong by recognizing, through the law, distinctions between kinds of offences and degrees of wrongdoing, A. Ashworth, Principles of Criminal Law (1995), 86 – arguably requires that an accused be charged with some form of group or common purpose liability if circumstances so warrant, even if the accused could also be prosecuted under other modes of liability. Yet the ICC’s restrictive interpretation of Art. 25(3)(a) and lack of gender competence in its application of Art. 25(3)(d) makes it difficult to characterize responsibility for SGBV crimes as such.

187 The ICC’s Office of the Prosecutor (OTP) 2006 Report on Prosecutorial Strategy explains: ‘the Office has adopted a positive approach to complementarity, meaning that it encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international co-operation’. International Criminal Court, Office of The Prosecutor, Report on Prosecutorial Strategy, 14 September 2006, at 5 (emphasis in original).

188 See, e.g., ‘Part IV: Complementarity in Practice’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (2011).

189 Note that customary international law may also be relevant to the interpretation of the Rome Statute. See Rome Statute, supra note 8, Art. 21(1).

190 See Đorđević Appeals Chamber Judgement, supra note 62, at para. 25.

191 Ibid., at para. 46.

192 Ibid., at para. 58.

193 See 1945 Charter of the International Military Tribunal, Art. 6, annex to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 280 Art. 6.

194 Such liability is broader than JCE I, which provides liability only for those crimes that were within the common plan, and encompasses foreseeable crimes, as the French judge on the IMT confirmed. Indeed, that judge later wrote that Art. 6 required ‘conduct aimed at the same result’ and ‘did not embrace crimes “which were not intended or foreseen”’, suggesting that foreseeable crimes came within the statute. R. Clarke, ‘Return to Borkum Island: Extended Joint Criminal Enterprise Responsibility in the Wake of World War II’, (2011) 9 Journal of International Criminal Justice 839, at 845 (quoting Donnedieu de Vabres).

195 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Art. II(2)(d), reprinted in 3 Trials of War Criminals before the Nuernberg Military Tribunals XVIII (1997), available at www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-III.pdf.

196 Trial of Erich Heyer and Six Others (‘The Essen Lynching Case’) (Brit. Mil. Ct. for the Trial of War Criminals, Essen, 18th-19th and 21st-22nd Dec., 1945), discussed at I U.N. War Crimes Comm’n, Law Reports of Trials of War Criminals 89 (1947), available at www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-1.pdf.

197 Ibid., at 88, 90.

198 There was some evidence that the captain may have suggested that the prisoners of war should be shot, though it is unclear whether the court accepted that evidence. Ibid., at 90.

199 Deputy Judge Advocate’s Office, Review and Recommendation, at 2 et seq., United States v. Goebell (1 August 1947), available at www.legal-tools.org/doc/aeb036/pdf/. See also Clarke, supra note 194, 841–3.

200 Deputy Judge Advocate’s Office Review and Recommendation, supra note 199, at 6–7 (describing statements by the mayor to ‘beat them dead’ and by other civilians to ‘kill them dead’).

201 Ibid. at 13–16.

202 Ibid. at 13.

203 See Đorđević Appeals Chamber Judgement, supra note 62, at para. 89.

204 Ibid., at para. 52. At the time of the Đorđević Appeals Chamber Judgement, the Extraordinary Chambers in the Courts of Cambodia had not yet issued the Supreme Court’s decision in Nuon. That case did consider several additional cases not cited by Tadić, and found them ambiguous. Co-Prosecutors v. Nuon et al., Appeal Judgement, Case No. 002/19-09-2007-ECCC/SC, ECCC Supreme Court Chamber, 23 November 2016, at paras. 792–4, 799, n. 2107, 800-04 (examining the Renoth, Pohl, Ikeda, Farben, Hadamar, Mauthausen, Russelsheim, Tashiro, Hatakeyama, Matsumoto, and Ishiyama cases). Even if these cases were ambiguous – and the following analysis of the Ikeda, Hatakeyama, and Matsumoto cases suggests that they were not – that would not prove that a mode of liability similar to JCE III was not used in any of the thousands of cases tried in the post-Second World War era.

205 Co-Prosecutors v. Ieng, Public Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), Case No. 002/19-09-2007-ECCC/OCIJ (PTC38), ECCC Pre-Trial Chamber, 20 May 2010, at para. 79.

206 Ibid.

207 The Queen v. Ikeda, Judgment, Case No. 72 A/1947, Batavia War Crimes Tribunal, 22 November 1947, at 1, available at www.legal-tools.org/doc/205dfb/pdf/.

208 Ibid., at 7, 8. The court elaborated that ‘even suggesting to these women and girls,’ who were ‘completely and utterly under the control of occupation authorities’, ‘that they should provide these kinds of services to the Japanese already implied a criminal purport, because of the submissiveness and incarceration into which they had been placed’. Ibid., at 9.

209 Ibid., at 8. These additional offences included enforced prostitution and abduction of girls and women for the purpose of enforced prostitution. Ibid., at 11.

210 Ibid.

211 See Clarke, supra note 194, at 857 (describing the case). Nearly identical language was used by the Judge Advocate in the Schonfeld trial before the British Military Tribunal. See Tadić Appeals Judgement, supra note 1, at para. 198. Similarly, in the Dachau Concentration Camp Trial, the Judge Advocate stated that where two or more people join together to commit a criminal act, they are all responsible for the consequences of the execution of that act even if the consequence was not specifically contemplated by the parties. Minister of the Republic v. Hissène Habré, Judgement, 30 May 2016, at para. 1881, available at www.legal-tools.org/doc/98c00a/pdf/ (quoting arguments in the case).

212 ECCC SCC Appeal Judgement, supra note 106, at para. 807.

213 Ibid., at para. 808.

214 Ibid.

215 Ibid. The Chamber further explained that liability is appropriate where the member of the JCE views the crime ‘as an eventuality treated with indifference’. Ibid., at para. 809. This language mirrors that used by the ICTY, which described JCE III as appropriate where ‘the accused was … indifferent to th[e] risk’ that an additional crime was a ‘predictable consequence of the execution of the common design’. See Tadić Appeals Judgement, supra note 1, at para. 204.

216 ECCC SCC Appeal Judgement, supra note 106, at para. 808.

217 Ibid.

218 As mentioned earlier, a similar standard is also often employed by domestic courts in criminal cases. See Prosecutor v. Ieng Sary et al., Co-Prosecutor’s Appeal against the Judgment of the Trial Chamber in Case 002/01, supra note 6, para. 50 (citing provisions on ‘individual criminal responsibility for unintended but foreseeable crimes arising out of joint criminal enterprise’ in criminal codes of the Australia, Austria, Bangladesh, Bermuda, Botswana, Cambodia, Canada, Egypt, Ethiopia, Fiji, France, Germany, Ghana, Greece, India, Iraq, Israel, Japan, Kenya, Malawi, Malaysia, New Zealand, Nigeria, Pakistan, Papua New Guinea, Philippines, Poland, the Union of Soviet Socialist Republics, Seychelles, South Africa, South Korea, Sri Lanka, Tanzania, Thailand, Uganda, the United Kingdom, the United States of America, Uruguay, Western Samoa, and Zambia).

219 Habré Judgement, supra note 211, at paras. 2157–70.

220 Ibid., at paras. 1865–84.

221 Ibid., at para. 1885.

222 Ibid., at paras. 1892, 1903.

223 It is also worth noting that one commentator recently nuanced their critique of JCE III after the UK’s decision in R. v. Jogee case. Now, she would allow that the foreseeability requirement, when coupled with the accused’s assumption of the risk, removes JCE III from the realm of pure strict liability. See van Sliedregt, E., ‘Joint Criminal Confusion: Exploring the Merits and Demerits of Joint Enterprise Liability’, in Krebs, B. (ed.), Accessorial Liability After Jogee (2019), 25–7Google Scholar.

224 Prosecutor v. Brđanin, Judgement, Case No. IT-99-36-A, A.Ch., 3 April 2007, at para. 424; see Stakić Appeals Judgment, supra note 112, at para. 386 (appellant was convicted because he ‘had a management and oversight function in relation to the camps’ where the crimes were committed, and not based on ‘guilt by association’); see also Tadić Appeals Judgement, supra note 1, at paras. 220, 227; see Kvočka Appeals Judgement, supra note 51, at para. 96; Prosecutor v. Munyakazi, Judgement, Case No. ICTR-97-36A-A, A.Ch., 28 September 2011, at para. 160; Prosecutor v. Taylor, Judgement, Case No. SCSL-03-01-T, SCSL T.Ch., 18 May 2012, at paras. 457, 459–61.

225 Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, Case No. IT-99-37-AR72, A.Ch., 21 May 2003, at para. 26.

226 Prosecutor v. Milan Martić, Appeal Judgement, Case No. IT-95-11-A, A.Ch., 8 October 2008, at para. 172.

227 Cassese et al., supra note 74, at 169.

228 Ibid. Cassese drew upon an English case to make the point:

Ibid., (quoting R. v. Powell (Anthony) and English, UK House of Lords, 1 A.C. 1, § 14 (30 October 1997)).

229 See, e.g., J. Ohlin, ‘The Co-Perpetrator Model of Joint Criminal Enterprise’, in A. Klip and G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals: The International Criminal Tribunal for the former Yugoslavia 2003 – Vol. 14 (2008), 739, at 742 (‘All participants of joint criminal plans are subject to equal criminal liability according to the doctrine created by the Tadić court, regardless of their level of participation in the plan. Therefore, minor participants are just as guilty as architects, hangers-on just as liable as organizers.’).

230 See Defence counsel Hague Discussions, supra note 142 (noting that three defence counsel who represented different accused before international tribunals confirmed that they could not recall a single case in which an accused had been convicted on the basis of JCE III that they felt amounted to a serious miscarriage of justice). This may well be because, as mentioned earlier, no conviction for JCE III can stand without participation by the accused in a JCE I or II, meaning anyone convicted of crimes on the basis of JCE III also participated in a JCE I or II atrocity crime typically involving grave abuses against mass numbers of victims.

231 See supra note 29 and accompanying test.

232 As we have discussed, the Rome Statute has two group liability provisions, joint commission under Art. 25(3)(a) and common purpose liability under Art. 25(3)(d). The idea here is that domestic or hybrid courts could apply something similar to Art. 25(3)(d) but with the JCE III foreseeability mens rea rather than the ‘aim of furthering’ or virtual certainty standard required under Art. 25(3)(d). See infra note 261 and accompanying text. While this parts from the recognition by Tadic of JCE III as a principal form of liability under customary international law, it would not run afoul of the nullum crimen sine lege principle, as the only change – characterizing it as accessorial rather than principal – actually favors the accused. See C. Kreβ, ‘Nulla poena nullum crimen sine lege’, in Max Planck Encyclopedia of Public International Law (2010), available at www.legal-tools.org/doc/f9b453/pdf/ (‘The [nullum crimen sine lege] principle of non-retroactivity does not apply to rules that are favourable to the accused.’).

233 Assisting another person to commit a crime (aiding and abetting) and failing to prevent one’s subordinates from committing crimes (command responsibility) is different than contributing to a group’s common criminal plan knowing other crimes will probably be committed. As discussed in Section 1 infra, there is a participation and group aspect to the latter that is not necessarily captured by complicity or command responsibility.

234 Askin, K., ‘Prosecuting Gender Crimes Committed in Darfur: Holding Leaders Accountable for Sexual Violence’, in Totten, S. and Markusen, E. (eds.), Genocide in Darfur: Investigating the Atrocities in the Sudan (2009), 142 Google Scholar.

235 As the last Chief Prosecutor of the ICTY observed, ‘[w]hile rape has historically been considered an opportunistic war crime, we have successfully proved that it is a foreseeable consequence of criminal plans to forcibly expel civilian populations’. Statement by S. Brammertz, ICTY Commemoration: Reflection on 24 Years of Fighting Impunity through International Courts and Tribunals, 4 December 2017, available at www.icty.org/x/file/Press/Statements%20and%20Speeches/Prosecutor/170512-remarks-by-the-prosecutor.pdf.

236 Prosecutor v. Karadžić, Trial Chamber Judgement, Case No. IT-95-5/18-T, T.Ch., 24 March 2016.

237 Ibid., at para. 3521. Significantly, in its near-final appellate jurisprudence emanating from the armed conflict in the former Yugoslavia, the Appeals Chamber of the Mechanism for International Criminal Tribunals (successor to the ICTY) reaffirmed the mens rea and the customary basis of the JCE III doctrine. See Prosecutor v. Karadžić, Judgment, Case No. MICT-13-55-A, 20 March 2019, at para. 433.

238 See Sadat and Jolly, supra note 2.

239 Situation in the Libyan Arab Jamahiriya, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-13, PTC I, 27 June 2011, at 6.

240 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 I.L.M. 679, Arts. 31, 32.

241 See Sadat and Jolly, supra note 2, at 785.

242 See Lubanga Trial Judgment (Fulford Opinion), supra note 137, at para. 16; Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 138, at para. 32.

243 See Lubanga Trial Judgment, supra note 130, at para. 981.

244 See Lubanga Trial Judgment (Fulford Opinion), supra note 137, at para. 16; Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 138, at para. 44.

245 See Lubanga Trial Judgment, supra note 130, at para. 999.

246 While, as we argue in Section 4.2.2. below, a gender competent approach to Art. 25(3)(d) might lead to greater accountability for SGBV crimes, we see no reason for the Court to maintain its restrictive approach to Art. 25(3)(a), which is not only unsupported by a plain reading of the provision but would unnecessarily limit group-related SGBV crimes to Art. 25(3)(d). Reading Art. 25(3)(a) in the way we suggest would allow a range of possible forms of liability for SGBV crimes, and permit the Court to use both Art. 25(3)(a) and (d), depending on the facts and circumstances of the case.

247 Prosecutor v. Krajišnik, Trial Chamber Judgement, Case No IT-00-39-T, T.Ch. I, 27 September 2006, at paras. 1105, 1117–19. Though the Appeals Chamber overturned the conviction for crimes forming part of the expanded plan, this was due to lack of evidence regarding when the common purpose was expanded to include those other crimes and not because of an objection to the notion that an accused can be held liable for an expanded common purpose. See also Prosecutor v. Radoslav Brđanin, Appeals Chamber Judgement, Case No. IT-99-36-A, A.Ch., 3 April 2007, at para. 365 (holding that the principal perpetrator does not have to be a member of the JCE as long as there was a common purpose to undertake the crime and one member of the JCE is linked to the perpetrator).

248 Prosecutor v. Krajisnik, Trial Judgement, Case No. IT-00-39-T, T. Ch. I, 27 September 2006, at para. 1098. The Appeals Chamber confirmed that the means of achieving a common purpose can evolve over time if the JCE members agreed on this expansion of means. Prosecutor v. Krajisnik, Appeals Chamber Judgement, Case No IT-00-39-A, A.Ch., 17 March 2009, at para. 163.

249 See Ntaganda Trial Judgment, supra note 14, at para. 801.

250 Ibid., at paras. 802–3. The judgment states that Mr. Ntaganda and Salumu Mulenda issued specific and repeated orders to attack the Lendu.

251 Ibid., at paras. 293, 799.

252 Ibid., at para. 809.

253 The Chambers concluded that by virtue of the agreement to drive the Lendu out of the area, the accused meant beyond reasonable doubt ‘for civilians be raped and subjected to sexual slavery’. Ibid., at para. 810.

254 Ibid., at para. 805 (emphasis added).

255 Ibid., at para. 775 (‘It is not required that the common plan between individuals was specifically directed at the commission of a crime; it suffices that the common plan contained a critical element of criminality, and that it was virtually certain that the implementation of the common plan would lead to the commission of the crimes at issue.’).

256 Ibid., at para. 811.

257 Ibid., at paras. 774, 779, 826.

258 Ibid., at para. 857.

259 See Đorđević Appeals Chamber Judgement, supra note 62, at para. 917.

260 See supra note 175–6 and accompanying text.

261 See Katanga Trial Chamber Judgment, supra note 134, at para. 1627.

262 Prosecutor v. Lubanga, Appeal Chamber Judgment, No. ICC-01/04-01/06 A 5, A.Ch., 1 December 2014, at para. 447.

263 This is because despite differences at the far end of each standard, there is overlap in the factual situations that are both foreseeable and virtually certain. Moreover, although a full examination of the mens rea standard adopted in Art. 30 of the Rome Statute is beyond the scope of this article, it is worth noting that the ICC has not always interpreted the phrase ‘aware that the crime would occur in the ordinary course of events’ as requiring a ‘virtual certainty’ that it will occur. While this was the standard employed by the Lubanga Appeal Chamber, see supra note 262, as well as the Katanga Trial Chamber, Katanga Trial Chamber Judgment, see supra note 134, at para. 1776 (citing Prosecutor v. Bemba, Decision Pursuant to Art. 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, PTC II, 15 June 2009, at paras. 352–69), an earlier interpretation of this phrase by the Lubanga Pre-Trial Chamber included the concepts of dolus eventualis. See Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, Case No. ICC-01/04-01/06-803, PTC I, 29 January 2007, at paras. 351–2. Given the experience of the ad hoc tribunals discussed in Section 2, the ‘virtual certainty’ standard may be difficult to prove in SGBV cases, suggesting that the Appeals Chamber may want to revisit this standard and consider adopting the approach taken by the Lubanga Pre-Trial Chamber.

264 See Kvočka Trial Judgement, supra note 62, at para. 327.

265 Ibid.

266 See Ntaganda Trial Judgment, supra note 14, at para. 811.

267 See Bemba Appeals Chamber Judgement, supra note 11. For a critique of the judgment, see SáCouto and Sellers, ‘The Bemba Appeals Chamber Judgment’, supra note 12; L. Sadat, ‘Fiddling While Rome Burns: The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo’, EJIL Talk!, 12 June 2018, available at www.ejiltalk.org/fiddling-while-rome-burns-the-appeals-chambers-curious-decision-in-prosecutor-v-jean-pierre-bemba-gombo/; D. Amann, ‘In Bemba and Beyond, Crimes Adjudged to Commit Themselves’, EJIL Talk!, 13 June 2018, available at www.ejiltalk.org/in-bemba-and-beyond-crimes-adjudged-to-commit-themselves/; S. SáCouto, ‘The Impact of the Appeals Decision in Bemba: Impunity for Sexual and Gender-Based Crimes’, International Justice Monitor, 22 June 2018, available at www.ijmonitor.org/2018/06/the-impact-of-the-appeals-chamber-decision-in-bemba-impunity-for-sexual-and-gender-based-crimes/.

268 See Sellers, P. V. and Nwoye, L., ‘Conflict-Related Male Sexual Violence and the International Jurisprudence’, in Zalewski, M. et al. (eds.), Sexual Violence Against Men and Boys in Global Politics (2018)Google Scholar.

269 See Mohamed, S., ‘Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law’, (2015) 124 Yale Law Journal 1628 Google Scholar; C. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (1998).

270 See, e.g., ‘The Bemba Appeals Judgment warrants better investigation and fair trials – not efforts to discredit the decision’, Amnesty International, 19 June 2018, available at https://hrij.amnesty.nl/bemba-verdict-warrants-better-investigations-and-fair-trials/.

271 As one scholar wryly observed, the Bemba case ‘arguably completes the unworkability of the system’. N. Hayes, comments, ICC Scholars Forum, Leiden University, 17 June 2018.

272 See Prosecutor v. Dominic Ongwen, Case No.ICC-02/04-01/15, at www.icc-cpi.int/uganda/ongwen, and Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case No. ICC-01/12-01/18, at www.icc-cpi.int/mali/al-hassan.

273 See Charlesworth, Chinkin and Wright, supra note 26, at 615.