International tribunals and national courts have been able to use joint criminal enterprise (JCE) to bring those responsible for the planning and organisation of crimes to justice, but it is not used by the International Criminal Court.

A new study warns that if this trend continues, there is a risk joint criminal enterprise – used to help nations get retributive, restorative, and social justice – will fall into disuse for international crimes prosecuted before the ICC.

The research says ensuring the ICC uses JCE will help victims get accountability and act as a deterrent to stop future mass atrocities.

Mass atrocity crimes are made possible by criminal networks of masterminds. The proposed change could help the ICC find the involved high ranking military officers and politicians guilty of collective criminal responsibility.

Experts say this is particularly important for those nations which lack stable legal systems.

The study, by Kevin Aquilina from the University of Malta, and Klejda Mulaj, from the University of Exeter, proposes that the ICC’s Rome Statute should be amended so joint criminal enterprise is incorporated into Article 25(3)(a) to include criminal acts through another person via JCE, and adding provisions to define its elements to guide the court’s interpretation. This will enable the ICC to apply JCE like the international ad hoc tribunals for the Former Yugoslavia and Rwanda have done in the past.

Dr Mulaj said: “Victims of mass atrocities need restorative justice – as well as crimes being punished through criminal processes – so that they can get recognition and start to move on from their ordeal. This can only happen if those responsible – both directly and indirectly – who have been involved in planning, organisation and enablement of mass atrocities, are punished.

“Joint criminal enterprise is a useful weapon for prosecutors as it helps them establish facts and events, and it is important, also, for victims. Now we need ICC member states to support its use.

“Societies cannot heal if the truth of their ordeal is not ascertained, impunity is not challenged, and a modicum of accountability is not achieved. Criminal justice has the potential to offer an important service to this end.”

Researchers hope their proposals will be considered by an ICC Review Conference to be convened by the Assembly of States Parties to the ICC Statute.

Dr Mulaj said: “The current situation means that JCE is in peril. There is a danger that, while it has been, and continues to be, a success story in national law and before international ad hoc tribunals, once the latter are definitively wound up, JCE may meet its untimely death in international criminal law.

“The ICC has made a deliberate decision not to apply it and, instead, rejected it and substituted it by indirect perpetration based on joint control of the crime, thereby risking the end of JCE within the realm of ICL.”