In a detailed paper published in the Reshut Harabim [Hebrew] online journal, Adv. Avraham Russell Shalev analyzes the legal doctrine of the Joint Criminal Enterprise as the primary tool for prosecuting Hamas October 7 terrorists as perpetrators of genocide.
Summary
International crimes such as war crimes, crimes against humanity, and genocide are characterized by the mass action of military, administrative, or governmental units cooperating to advance a plan. There is difficulty in distinguishing the actions of each participant separately due to the variety of roles required to execute a mass plan, and evidentiary issues. The doctrine of the Joint Criminal Enterprise (JCE) was formulated as an essential tool for dealing with collective crimes in international law. It serves as a bridge between evidentiary challenges and the need to impose moral and legal responsibility on the participants in large-scale crimes.
The JCE is divided into three types – basic (JCE I), systemic (JCE II) and extended (JCE III). All three consist of three factual elements: (a) a plurality of people organized in a military, political, or administrative group, (b) a common plan or purpose to commit a crime, (c) participation in that common purpose.
Regarding the psychological element (mens rea), basic and systemic JCE require an intention to participate in and further the criminal purpose, while extended JCE refers to acts committed outside the original plan, where it was (1) foreseeable that one of the group members would commit the crime, and (2) the accused knowingly chose to take that risk.
JCE I has been used in the ICTY Trial Chamber Simic case in 2003 and the ICTR Simba case in 2005. The ICTY Appeals Chamber in the Brđanin case and the ICTY Trial Chamber in the Milošević case ruled that extended JCE is similar to aiding or command liability, in which the accused can be convicted when he could have foreseen that the commission of the crime would be a natural consequence of his actions.
Israeli law adopted the conceptual model underlying JCE, both before and after Amendment 39 to the Penal Law. The Israeli Court arguably relied on the JCE doctrine to impose personal responsibility on Eichmann in the Eichmann trial. The entire campaign of extermination during the Holocaust was considered a single, comprehensive act, not divisible into separate acts or executions carried out by specific people at different times, or in different places. From the court’s perspective, one team of people jointly committed the act throughout the entire time and in every place. The legal significance of this is that a defendant accused of participation in carrying out the comprehensive crime of the “Final Solution” in any of its manifestations should be convicted of genocide. The amended law defines co-perpetrators to a crime according to their actions; however, case-law has given decisive weight to the intent of partnership and common planning, so that co-perpetrators are perceived as part of an “inner circle” constituting a single body committing the offense, even if their physical contribution is not at the core of the factual element. Moreover, Israeli law adopts extended JCE through Section 34a, which extends co-perpetrators criminal liability to additional crimes that were not planned, provided they were foreseeable during the execution of the original plan.
The Hamas attack on October 7, 2023 can serve as a clear example of applying the JCE doctrine in the context of collective crimes, including suspected liability for genocide. The operation order bearing the signature of Al-Qassam Brigades commander Mohammed Deif revealed by Al Jazeera, and the military preparations described in relevant research, indicate the existence of a common plan to commit crimes against Israeli civilians, with a specific intent to humiliate and destroy Jews, in a manner corresponding to the definition of genocide according to the 1948 Convention and the Israeli Crime of Genocide (Prevention and Punishment) Law.
The aforementioned operation order declares a belief among Hamas’s political and military leadership in Allah’s promise to humiliate the Jews and destroy them at the hands of “Allah’s servants,” as well as the liberation of the Al-Aqsa Mosque and Jerusalem. This has explicit genocidal intent, emphasizing an ethnic-religious element beyond a military one. The document was classified as “top secret” and emphasizes broad coordination, thus supporting the elements demonstrating JCE: (1) multiple participants (the Nukhba units alongside additional forces, summoned and assembled within the framework of military exercises in September 2023); (2) a common plan (the operation order detailing a large-scale attack on “occupied lands,” including defined targets, distribution of tasks, and coordination between units); and (3) participation (all participants contributed to the enterprise, from logistical preparations like planting explosives at the border, through infiltration into Israeli territory, to the commission of crimes such as murder, rape, and kidnapping). The preparations included three mobilization drills in September, which testifies to close coordination and shared awareness.
As far as the subjective requirements, all participants, particularly the Nukhba units, shared a common intent to commit the crimes, thus making basic JCE applicable. The operation order explicitly states “the humiliation of the Jews and their destruction at the hands of Allah’s servants,” while citing Quranic verses, emphasizing the destruction and humiliation of enemies. This intent is not limited to a military objective but includes an ethnic-religious element, corresponding to the requirement of specific intent (dolus specialis) for genocide – the destruction, in part, of a Jewish group. Just as in the ICTR’s Simba case, mental intent can be inferred from the evidence of planning and distribution of weapons. October 7 preparations – including oral briefings and coordination of prayers as a charm for jihad – prove awareness and willingness to advance the criminal plan. Even if some of the crimes (such as rape or torture) were not detailed in the original plan, they were natural and foreseeable consequences of the mass attack on civilians, making extended JCE applicable, as was clarified in international law in the Brđjanin case.
An interesting supportive precedent is a German case from 2021, upheld by the Federal Court of Justice in Germany (BGH) where a defendant, who was a member of ISIS, was convicted not only of causing serious physical and mental harm to a Yazidi mother and her five-year-old daughter whom he held captive, but also as part of a deliberate campaign of extermination against the entire religious group. The German court conducted an in-depth analysis of ISIS’s ideology to prove genocidal intent, focusing on official documents and the organization’s media.
In the case at hand, all of southern Israel can be defined as a single unified crime scene, within the framework of one common plan by Hamas. Every Hamas member, from the Nukhba units or other forces, who infiltrated Israeli territory on that day, can be considered as having made a significant contribution to the entire criminal enterprise. This contribution can include armed infiltration, participation in the mass attack, or even assistance in diverting security forces – all as part of the coordinated plan per the operation order. This approach, based on circumstantial evidence such as joint briefings and military preparations, will enable conviction for genocide without the need to prove a direct connection to each specific victim, while conforming to existing Israeli law. A presumption can be established whereby every participant captured in proximity to the events of October 7 will be considered a co-perpetrator of all collective crimes – including genocide and crimes against humanity – unless proven otherwise. This presumption will be based on circumstantial evidence such as participation in the common plan as it is described in Hamas’s operation order, preventing mass acquittals or prolonged detention without trial. This will align with Israeli justice principles and prevent abuse of international law against Israel.
To conclude, the Joint Criminal Enterprise (JCE) doctrine provides an essential legal tool for addressing evidentiary challenges in convicting perpetrators of collective crimes, as demonstrated in international and Israeli case-law. Its application to the Hamas attack on October 7, 2023, will enable the imposition of liability for genocide on all participants, from the leaders to the terrorists on the ground, recognizing the common intent to destroy Jews or Israelis as a protected group. The comparison to the German ruling regarding the Yazidi genocide by ISIS emphasizes the need for an in-depth ideological analysis of Hamas, as this genocidal ideology transforms individual acts into part of a broader campaign of extermination. Prosecution under the charge of genocide will not only ensure justice for the victims but will also strengthen the historical and moral narrative against Islamist terrorism, while deterring future atrocities and protecting the values of humanity.
