Failure to act

Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

109. The Appeals Chamber considers that Stanišić’s argument that the Trial Chamber failed to apply the correct legal standard to his “purported omissions”[1] is based on the premise that each failure to act assessed in the context of joint criminal enterprise liability must, per se, meet the legal conditions set out in the Tribunal’s case law in relation to commission by omission. In this respect, the Appeals Chamber recalls that although participation in a joint criminal enterprise – which is based on an accused’s significant contribution to the common criminal purpose – is a form of “commission” under Article 7(1) of the Statute, this is a mode of liability distinct from commission by omission and is characterised by different objective and subjective elements.[2]

110. In this respect, the Trial Chamber properly held that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[3] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case‑by‑case basis.[5] Furthermore, the Appeals Chamber recalls that the relevant failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[6] That is, one’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs acts (or fails to perform acts) that in some way contribute significantly to the furtherance of the common purpose.[7] In light of the above, contrary to Stanišić’s assertion, when establishing an accused’s participation in a joint criminal enterprise through his failure to act, the existence of a legal duty to act deriving from a rule of criminal law is not required.[8] The nature of the accused’s duty and the extent of his ability to act are simply questions of evidence and not determinative of joint criminal enterprise liability.[9]

111. In the present case, as part of its factual determination of Stanišić’s contribution to the JCE, the Trial Chamber considered, together with his other actions,[10] his failure to discipline the RS MUP personnel who had committed crimes and to protect the civilian population,[11] despite his duties to do so, together with his ability, as the highest authority, to investigate and punish those who had committed crimes.[12] The Appeals Chamber observes that in the jurisprudence of the Tribunal, a failure to intervene to prevent recurrence of crimes or to halt abuses has been taken into account in assessing an accused’s contribution to a joint criminal enterprise and his intent where the accused had some power and influence or authority over the perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.[13] Therefore, Stanišić has not shown that the Trial Chamber applied an erroneous legal standard when it considered instances of his failures to act in assessing whether he contributed to the JCE.

[…]

733. Turning to Župljanin’s arguments in relation to his capacity or ability to act, based on the same reasoning, the Appeals Chamber finds no merit in Župljanin’s attempt to conflate the Appeals Chamber’s statement that the objective element of commission by omission requires, at a minimum, an “elevated degree of ‘concrete influence’”,[14] with the significant contribution requirement of joint criminal enterprise liability.[15] For the same reason, the Appeals Chamber dismisses Župljanin’s argument that the Trial Chamber failed to make findings or particularised findings as to whether “he had such a high degree of control over his subordinates that his ‘omission’ could count as part of the actus reus of commission”.[16]

See also paras 731-732, 734.

[1] Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 190, 207.

[2] See Tadić Appeal Judgement, paras 188, 227-228. See also Krajišnik Appeal Judgement, para. 662. As for the elements of joint criminal enterprise liability, see further Brđanin Appeal Judgement, paras 364-365, 429-430; Stakić Appeal Judgement, paras 64-65. As for the elements of commission by omission, see further Orić Appeal Judgement, para. 43, Brđanin Appeal Judgement, para. 274, Galić Appeal Judgement, para. 175, Ntagerura et al. Appeal Judgement, para. 334, Blaškić Appeal Judgement, para. 663.

[3] Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 103, referring to Brđanin Appeal Judgement, para. 430. See Krajišnik Appeal Judgement, paras 215, 696. See also Popović et al. Appeal Judgement, para. 1378.

[4] Krajišnik Appeal Judgement, para. 696.

[5] See Šainović et al. Appeal Judgement, paras 1233, 1242. Cf. Krajišnik Appeal Judgement, para. 696.

[6] Krajišnik Appeal Judgement, para. 215; Brđanin Appeal Judgement, para. 427; Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 227. The Appeals Chamber observes that the Trial Chamber correctly recalled the jurisprudence in this regard (see Trial Judgement, vol. 1, para. 103).

[7] Popović et al. Appeal Judgement, para. 1653; Šainović et al. Appeal Judgement, para. 985; Krajišnik Appeal Judgement, paras 215, 695-696. See Šainović et al. Appeal Judgement, paras 1233, 1242.

[8] The Appeals Chamber considers Stanišić’s reliance on the Tolimir Trial Judgement inapposite as, in the reference cited by Stanišić, the Tolimir Trial Chamber recalled in general terms the well-established jurisprudence on liability by omission pursuant to Article 7(1) of the Statute, which does require proof of a legal duty to act, without addressing the specific issue at stake in the present case (see Tolimir Trial Judgement, para. 894, fn. 3528).

[9] See Šainović et al. Appeal Judgement, para. 1233, 1242. See also Šainović et al. Appeal Judgement, para. 1045; Martić Appeal Judgement, para. 28; Krajišnik Appeal Judgement, paras 193-194, 204.

[10] See, e.g. Trial Judgement, vol. 2, para. 734, 737-744. See also Trial Judgement, vol. 2, paras 58, 588, 591-595, 729‑736.

[11] Trial Judgement, vol. 2, paras 695, 698, 754. See Trial Judgement, vol. 2, paras 18, 37-43.

[12] Trial Judgement, vol. 2, para. 755.

[13] See Šainović et al. Appeal Judgement, paras 1233, 1242 (The Appeals Chamber found that the accused’s duty to prevent or punish his subordinates’ crimes and failure to do so was “not determinative of his criminal responsibility” for joint criminal enterprise liability but “was part of the circumstantial evidence from which his intent and contribution to the JCE could be inferred” (Šainović et al. Appeal Judgement, para. 1242)); Krajišnik Appeal Judgement, para. 194 (the Appeals Chamber found that the accused had “some power and influence” and “the power to intervene” and that the Krajišnik Trial Chamber could rightfully consider his failure to intervene “as one of the elements tending to prove [his]] acceptance of certain crimes” (Krajišnik Appeal Judgement, para. 194)); Kvočka et al. Appeal Judgement, paras 195-196 (The Appeals Chamber observed that in concluding that the accused’s participation in the functioning of the camp had furthered the criminal purpose, the Trial Chamber had considered inter alia its findings “that he held a high‑ranking position in the camp and had some degree of authority over the guards; that he had sufficient influence to prevent or halt some of the abuses but that he made use of that influence only very rarely” (Kvočka et al. Appeal Judgement, para. 195 (internal citations omitted)). See also Krajišnik Appeal Judgement, paras 216(e), 217. For further factual background of the jurisprudence cited in the current footnote, see Milutinović et al. Trial Judgement, paras 773, 777, 782; Krajišnik Trial Judgement, paras 1118-1119, 1121(e), 1121(j); Kvočka et al. Trial Judgement, paras 372, 395-396. See further infra [Stanišić and Župljanin Appeal Judgement]], para. 734.

[14] Mrkšić and [ljivančanin Appeal Judgement, para. 156; Orić Appeal Judgement, para. 41; Blaškić Appeal Judgement, para. 664.

[15] Cf. Mrkšić and [ljivančanin Appeal Judgement, para. 156, where the Appeals Chamber rejected Veselin Šljivančanin’s attempt to conflate the substantial contribution requirement of the objective element of aiding and abetting with the elevated degree of concrete influence. The Appeals Chamber further considers inapposite Župljanin’s contention that “anyone’s failure to prevent crimes” would satisfy the objective element of joint criminal enterprise in the absence of a threshold of concrete influence over subordinates (Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 132). His argument in this respect once more ignores the requirements for joint criminal enterprise liability, that an accused must make at least a significant contribution to the execution of the common plan (Popović et al. Appeal Judgement, para. 1378; Kvočka et al. Appeal Judgement, paras 97-98; supra [Stanišić and Župljanin Appeal Judgement]], para. 110. See Šainović et al. Appeal Judgement, paras 954, 987).

[16] Župljanin Appeal Brief, para. 135.The Appeals Chamber further notes thatŽupljanin’s submissions that the Trial Chamber failed to make particularised findings regarding his control and authority over his subordinates is based on the unsupported statement that the Trial Chamber relied upon his failure to fulfil his duties with respect to every Indictment crime it evaluated, and considered his every inaction in assessing his contribution to the JCE. As explained below, the Appeals Chamber considers that Župljanin’s assertion misinterprets the Trial Judgement (see Župljanin Appeal Brief, para. 135. See infra [Stanišić and Župljanin Appeal Judgement]], paras 736-813).

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