Conspiracy and joint criminal enterprise (JCE) are legal expressions of responsibility models that seek to hold individuals criminally liable for organizational or collective action. They have in common the existence of a criminal agreement through which the parties’ intent becomes perceptible. JCE is a mode of participation developed through international case law. Conspiracy, however, is an inchoate crime of common law origin, and while it was formerly unknown or accepted to a very limited extent in civil law systems, it is now used in many jurisdictions for the prosecution of crimes such as terrorism. The separate (common law) offense of conspiracy is defined as an agreement between two or more individuals to commit a crime. It is punished independently, meaning it is punished even if the planned crime is never perpetrated. In international law, the concept of conspiracy originated in the aftermath of World War II. Article 6(a) of the Charter of the International Military Tribunal (IMT) in Nuremberg criminalized the conspiracy to commit crimes against peace (there was no similar provision in relation to war crimes and crimes against humanity). The final paragraph of Article 6 also included conspiracy as a form of participation, making the concept applicable as a mode of liability (as opposed to a separate offense as with crimes against peace) to all categories of crimes in Article 6. The Charter of the International Military Tribunal for the Far East (IMTFE) in Tokyo replicated the IMT’s provisions. In contemporary international criminal law, the inchoate crime of conspiracy can be found in Article 3(b) of the 1948 Genocide Convention as well as in the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), but only in relation to genocide. JCE, a type of surrogate conspiracy but strictly a mode of liability, was developed by the ICTY Appeals Chamber (AC) in Prosecutor v. Duško Tadić, cited under Judicial Decisions. The ICTY Statute does not set out the objective and subjective elements of what the AC termed JCE, so the judges looked to customary law. They distinguished three types of JCE, all of which share common objective elements but differ as to the subjective elements. Type three JCE, where the crimes are committed by members of the group outside its common purpose but as foreseeable consequences of it, is the judgment’s most controversial creation (see also Third Category Joint Criminal Enterprise).
Most, if not all, international criminal law textbooks include chapters on individual criminal responsibility, in which conspiracy and joint criminal enterprise are discussed. Cassese 2008 has separate sections on both concepts, providing a thorough introduction to the contentious issues. Zahar and Sluiter 2008 includes a comprehensive chapter on JCE, but it discusses conspiracy (to commit genocide) more briefly. In addition to these general works, there is abundant scholarship on individual criminal responsibility. Concepts such as JCE and other common purpose liability forms are somewhat controversial and, therefore, widely discussed among international criminal lawyers and practitioners. Consequently, there are a number of comprehensive works solely focused on modes of liability. Nollkaemper and van der Wilt 2009, comprising contributions from a broad range of experts, shows that international crimes inevitably take place within a certain context or system, and therefore inherently imply some form of collective criminality. Boas, et al. 2007 is intended for the international criminal law practitioner, but it is very useful to nonpractitioners as well, especially to those looking for a less theoretical and a more case law–oriented discussion. There are also a number of leading monographs on the subject that all include sections on conspiracy and JCE: Bantekas 2002 discusses the conspiracy concept elaborately, assuming an international humanitarian law perspective, Olásolo 2009 offers an in-depth comparison of different modes of liability, and van Sliedregt 2012 provides a detailed and comprehensive analysis of all forms of individual criminal responsibility. Ohlin 2009 is a contribution to a commentary on the UN Genocide Convention by Paula Gaeta, and it discusses conspiracy to commit genocide in international law.
Bantekas, Ilias. Principles of Direct and Superior Responsibility in International Humanitarian Law. Manchester, UK: Juris, 2002.
Provides a historical overview of the development of individual criminal responsibility from an international humanitarian law perspective. Includes an in-depth section on (the history of) conspiracy under international law, with a brief segment on JCE in chapter 2.
Boas, Gideon, James L. Bischoff, and Natalie L. Reid. International Criminal Law Practitioner Library. Vol. 1, Forms of Responsibility in International Criminal Law. Cambridge, UK: Cambridge University Press, 2007.
Primarily intended for the practitioner of international criminal law, this book presents a practical and detailed review of individual criminal responsibility. Includes a critical analysis of JCE’s subjective and objective elements as well as the important related case law.
Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2008.
Provides a theoretical framework for the concepts of conspiracy (chapter 10.6) and JCE (chapter 9.4). The textbook is intended for both students and practitioners, and aims to offer a general introduction to the fundamentals of international criminal law.
Nollkaemper, André, and Harmen van der Wilt, eds. System Criminality in International Law. Cambridge, UK: Cambridge University Press, 2009.
This volume’s contributions by some well-known legal scholars explore a wide range of issues pertaining to the criminality of organizations. Useful for a more in-depth understanding of the tension between collective action and individual culpability in international criminal law.
Ohlin, Jens David. “Incitement and Conspiracy to Commit Genocide.” In The UN Genocide Convention: A Commentary. Edited by Paula Gaeta, 207–227. Oxford: Oxford University Press, 2009.
Presents a systematic review of the elements of conspiracy in relation to the crime of conspiracy to commit genocide. Includes a section on domestic prosecutions and legislation.
Olásolo, Héctor. Criminal Responsibility of Senior Political and Military Superiors as Principals to International Crimes. Oxford: Hart, 2009.
One chapter of this book (chapter 4) is particularly relevant as it contains a comprehensive and in-depth analysis of JCE as a form of co-perpetration.
van Sliedregt, Elies. Individual Criminal Responsibility in International Law. Oxford: Oxford University Press, 2012.
Offers a comprehensive and detailed account of theories of individual criminal responsibility and modes of liability. More specifically, Part 1 includes a discussion of collective criminality theories in relation to conspiracy (chapter 2), and Part 2 discusses conspiracy as inchoate crime (chapter 7.6) and JCE (chapters 6.7 and 7).
Zahar, Alexander, and Göran Sluiter. International Criminal Law: A Critical Introduction. Oxford: Oxford University Press, 2008.
Textbook intended for both students and practitioners. Taking a critical approach, the authors discuss the origins and utilization of JCE elaborately (chapter 7.2), and conspiracy to commit genocide briefly (chapter 5.3.5).
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