Contribution

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1615. The Appeals Chamber recalls that it has previously held that the participation of an accused in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] Moreover, it has previously held that “the fact that [the] participation [of an accused] amounted to no more than his or her ‘routine duties’ will not exculpate the accused”.[2] […]

[1]           Krajišnik Appeal Judgement, paras 215, 695-696; Kvočka et al. Appeal Judgement, para. 263. See also Šainović et al. Appeal Judgement, para. 985.

[2]           See Blagojević and Jokić Appeal Judgement, para. 189 making this statement in the context of aiding and abetting liability.

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

303. The Appeals Chamber is unable to agree that the Trial Chamber required the Appellant’s participation in a JCE at Cyanika Parish to be substantial. The basis for this Prosecution argument appears to be the Trial Chamber’s findings that the Appellant provided substantial assistance at the massacres at MurambiTechnicalSchool and Kaduha Parish.[1] The Appeals Chamber notes that the Trial Chamber expressly acknowledged that a showing of substantial contribution is not required as a matter of law.[2] The Trial Chamber correctly interpreted the law on this matter. The Appeals Chamber recalls that although an accused’s contribution to a JCE need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is found to be responsible.[3]  

304. The fact that the Appellant’s actions at MurambiTechnicalSchool and Kaduha Parish were found to have provided substantial assistance at those sites does not necessarily imply that this was therefore required for a finding of responsibility for the crimes at Cyanika Parish. The Appellant’s actions with respect to Cyanika Parish were clearly addressed by the Trial Chamber, which found that there was “no direct evidence linking him to Cyanika Parish or indicating that he knew and accepted that it would also form part of the operation.”[4] In so doing, it considered the Appellant’s contribution to the Cyanika Parish massacre only insofar as it could have provided any evidence that would allow for a finding that he possessed the requisite mens rea with respect to the JCE at that site. The Prosecution has therefore demonstrated no legal error on the part of the Trial Chamber. As the Prosecution has not properly challenged on appeal the Trial Chamber’s findings on the mens rea elements for a JCE encompassing the killing of Tutsi at Cyanika Parish,[5] the Appeals Chamber need not consider whether the Trial Chamber erred in its finding in this respect. Accordingly, this ground of appeal is dismissed in its entirety.

[1] See e.g. Trial Judgement, para. 403: “Simba participated in the joint criminal enterprise through his acts of assistance and encouragement to the physical perpetrators of the crimes at Murambi Technical School and Kaduha Parish. In the Chamber’s view, Simba’s actions at those two sites had a substantial effect on the killings which followed” (footnote omitted) (emphasis added); Trial Judgement, para. 425: “Simba participated in this large-scale killing as a participant in the joint criminal enterprise to kill Tutsi at these two sites by distributing weapons and lending approval and encouragement to the physical perpetrators. In its findings on criminal responsibility, the Chamber described this assistance as having a substantial effect on the killings that followed” (footnotes omitted) (emphasis added); Trial Judgement, para. 433: “The Chamber determined that Simba’s acts of assistance and encouragement provided substantial assistance.” (emphasis added).

[2] Trial Judgement, fn. 407.

[3] Brđanin Appeal Judgement, para. 430.

[4] Trial Judgement, para. 407.

[5] See Decision on Motion for Variation of Notice of Appeal of 17 August 2006 [ The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on ‘Prosecutor’s Motion for Variation of Notice of Appeal Pursuant to Rule 108’, 17 August 2006].

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Notion(s) Filing Case
Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1177. The jurisprudence of the Tribunal has held that, in order for an accused to be held responsible for a crime committed pursuant to JCE liability, it must be established that he or she performed “acts that in some way [were] directed to the furthering of the common plan or purpose” of the JCE.[1] In this regard, the Appeals Chamber recalls its conclusion that the Trial Chamber’s finding that a common purpose existed beyond reasonable doubt “during the time of the crimes alleged in the Indictment”[2] concerned the period starting from 24 March 1999.[3] The Appeals Chamber further notes that, based on the Trial Chamber’s findings, both the arming of the non-Albanian population and the disarming of the Kosovo Albanian population were carried out earlier than 24 March 1999.[4] Moreover, the Trial Chamber’s finding on Pavković’s involvement in the process of arming and disarming was based on evidence concerning his conduct in 1998.[5] In these circumstances, it was unreasonable for the Trial Chamber to find that Pavković “acted […] to further the common purpose” through his enthusiastic involvement in, and support for, the process of arming and disarming and thereby finding that he contributed to the common purpose of the JCE prior to its existence.[6]

See also paras 1178, 1445.

[1] Tadić Appeal Judgement, para. 229(iii). See also Krajišnik Appeal Judgement, para. 695; Brđanin Appeal Judgement, para. 427.

[2] Trial Judgement, vol. 3, para. 96.

[3] See supra, para. 610.

[4] Trial Judgement, vol. 1, paras 764-766, 775, 787; ibid., vol. 3, paras 57-58, 68-72.

[5] Trial Judgement, vol. 3, paras 667-668. It follows that, contrary to the Prosecution’s contention (Appeal Hearing, 11 Mar 2013, AT. 247), Pavković’s engagement in the process of arming and disarming, as such, cannot be considered as “bringing in” or “making use of” the results of the arming and disarming during the time when the common purpose was in existence.

[6] Trial Judgement, vol. 3, paras 779, 782. In this regard, the jurisprudence of the Tribunal, referred to by the Prosecution, indicates that certain conduct of a JCE member which started prior to, and continued during, the period when a common purpose of a JCE was found to have existed could constitute an act in furtherance of the common purpose by virtue of the continuation of this conduct while the common purpose was in existence (see Krajišnik Appeal Judgement, paras 162, 209-218; Martić Appeal Judgement, para. 117; Martić Trial Judgement, paras 445, 448). This was not the case with respect to Pavković’s engagement in the process of arming and disarming. 

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Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

466. […] The accused’s participation in the criminal enterprise need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common purpose.[1]

[1] Ibid.

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Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

215. The Appeals Chamber recalls that the participation of an accused person in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] The contribution need not be necessary or substantial, but it should at least be a significant contribution to the crimes for which the accused is found responsible.[2]

218. […] Moreover, the fact that it was not criminal to be involved in the setting up of SDS structures is irrelevant: as explained above, the participation of an accused in the JCE need not involve the commission of a crime, what is important is that it furthers the execution of the common objective or purpose involving the commission of crimes.[3] […].

675. The Trial Chamber held that a contribution of the accused to the JCE need not, as a matter of law, be substantial.[4] The Appeals Chamber agrees and rejects JCE counsel’s contention to the contrary. It also recalls that the accused’s contribution to the crimes for which he is found responsible should at least be significant.[5] As such, JCE counsel is wrong to suggest that JCE criminalises the mere holding of beliefs supportive of crimes.

676. In Kvočka et al., the Appeals Chamber held that “there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the [JCE]”.[6] However, its application of this exception to Zoran Žigić was strictly confined to the facts of that case.[7] Therefore, Kvočka et al. does not represent the broad legal recognition of a substantiality requirement JCE counsel allege.

680. The Appeals Chamber in Kvočka et al. held that, “[i]n practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.”[8] This, however, does not amount to a legal requirement that the Trial Chamber take the significance ‑ or, in the words of JCE counsel, the “substantiality or nature” ‑ of an accused’s contribution into account in assessing his intent. That assessment is more a matter of evidence than of substantive law. In any case, the Trial Chamber did note the significance of Krajišnik’s contribution in concluding on his mens rea.[9] It did not err in doing so.

695. The Appeals Chamber finds that contrary to JCE counsel’s allegation, the Trial Chamber did not find that the political activities of Krajišnik formed the actus reus of any of the crimes against humanity of which he was convicted. Instead, Krajišnik was convicted for crimes for which he was found criminally responsible under the mode of liability of JCE, which requires that the defendant “has made a significant contribution to the crime’s commission.”[10] The Tribunal’s jurisprudence does not require such contribution to be criminal per se. Indeed, the Appeals Chamber has explicitly held that the contribution “need not involve commission of a specific crime” under the Statute.[11] Moreover, the Appeals Chamber has repeatedly found that contribution to a JCE “may take the form of assistance in, or contribution to, the execution of the common purpose,”[12] and that it is not required that the accused physically committed or participated in the actus reus of the perpetrated crime.[13] It is sufficient that the accused “perform acts that in some way are directed to the furthering” of the JCE[14] in the sense that he significantly contributes to the commission of the crimes involved in the JCE. For these reasons, the Appeals Chamber holds that the contribution to a JCE need not, in and of itself, be criminal. JCE counsel’s claim to the contrary is dismissed.

696. JCE counsel further assert that Krajišnik’s speeches cannot, as a matter of law, constitute a contribution to a JCE, because they were protected under his right to freedom of speech.[15] The Appeals Chamber disagrees. What matters in terms of law is that the accused lends a significant contribution to the commission of the crimes involved in the JCE.[16] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to the common purpose. Within these legal confines, the question of whether the accused contributed to a JCE is a question of fact to be determined on a case-by-case basis.[17] As JCE counsel’s present argument is limited to a question of law, the Appeals Chamber need not address it further.

[1] Kvočka et al. Appeal Judgement, para. 99; Babić Appeal Judgement, para. 38; Ntakirutimana Appeal Judgement, para. 466; Vasiljević Appeal Judgement, para. 100; Krnojelac Appeal Judgement, paras 31 and 81; Tadić Appeal Judgement, para. 227(iii).

[2] Brđanin Appeal Judgement, para. 430.

[3] Kvočka et al. Appeal Judgement, para. 99; Babić Appeal Judgement, para. 38; Ntakirutimana Appeal Judgement, para. 466; Vasiljević Appeal Judgement, para. 100; Krnojelac Appeal Judgement, paras 31 and 81; Tadić Appeal Judgement, para. 227(iii).

[4] Trial Judgement, para. 883 (iii).

[5] Brđanin Appeal Judgement, para. 430. Kvočka et al. Appeal Judgement, para. 97.

[6] Kvočka et al. Appeal Judgement, para. 97.

[7] Kvočka et al. Appeal Judgement, para. 599 (footnote omitted):

In the view of the Appeals Chamber, it would not be appropriate to hold every visitor to the camp who committed a crime there responsible as a participant in the joint criminal enterprise. The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required, but finds that, in the present case of “opportunistic visitors”, a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine.

[8] Kvočka et al. Appeal Judgement, para. 97.

[9] Trial Judgement, para. 1119, noting that Krajišnik “held a central position in the JCE” and that he “was one of the driving forces behind it”.

[10] Brđanin Appeal Judgement, para. 431.

[11] Tadić Appeal Judgement, para. 227.

[12] Brđanin Appeal Judgement, para. 424, with reference to Vasiljević Appeal Judgement, para. 100.

[13] Brđanin Appeal Judgement, paras 424, 427; Babić Judgement on Sentencing Appeal, para. 38; Vasiljević Appeal Judgement, para. 100; Kvočka et al. Appeal Judgement, paras 99, 263; Knojelac Appeal Judgement, paras 31, 81; Tadić Appeal Judgement, para. 227.

[14] Tadić Appeal Judgement, para. 229.

[15] AT. 213-214, 225, 230.

[16] Brđanin Appeal Judgement, para. 430.

[17] As JCE counsel himself appears to concede: see AT. 231-233.

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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

96. The Appeals Chamber has explained the actus reus of the participant in a joint criminal enterprise as follows:

First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose.[1]

97. The Appeals Chamber notes that, in general, there is no specific legal requirement that the accused make a substantial contribution to the joint criminal enterprise. However, there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the joint criminal enterprise.[2] In practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose..

See also paras 188 and 599:

188. The Appeals Chamber recalls however that the significance and scope of the material participation of an individual in a joint criminal enterprise may be relevant in determining whether that individual had the requisite mens rea.[3] The extent of the material participation is also a decisive factor when assessing the responsibility of an individual for aiding and abetting the crimes committed by the plurality of persons involved in the joint criminal enterprise. As stated in the Tribunal’s case-law, the aider and abettor must make a substantial contribution to the crime in order to be held responsible.[4]

599. […] The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required,[5] but finds that, in the present case of “opportunistic visitors”, a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine.

[1] Vasiljević Appeal Judgement, para. 100 (footnotes omitted).

[2] See e. g. below, para. 599 (the case of “opportunistic visitors” who enter the camp to commit crimes).

[3] Ibid. [See above, para. 97.]

[4] Ibid., paras 89-90.

[5]Appeal Judgement, para. 97.

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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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ICTR Statute Article 6(1) ICTY Statute Article 7(1)