Identity of participants
|Appeal Judgement - 17.03.2009||
The Appeals Chamber found that while it can be sufficient to refer to categories or groups of persons in order to identify JCE members, in the case at hand the Trial Chamber made impermissibly vague identifications in relation to some of the JCE members:
156. While a Trial Chamber must identify the plurality of persons belonging to the JCE, it is not necessary to identify by name each of the persons involved. Depending on the circumstances of the case, it can be sufficient to refer to categories or groups of persons. […]
157. The issue before the Appeals Chamber is whether the Trial Chamber’s finding in paragraph 1087 that the JCE included a “rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others” was erroneously unspecific as far as this finding is not further specified by the rank and file JCE members individually named in paragraph 1088. The Appeals Chamber finds that the Trial Chamber indeed erred in this respect. The Trial Chamber failed to specify whether all or only some of the local politicians, militaries, police commanders and paramilitary leaders were rank and file JCE members. Furthermore, the finding in paragraph 1087 does not refer to any time period that could further specify who was found to be a rank and file JCE member. Also, the reference to the geographical scope (“regions and municipalities of the Bosnian-Serb Republic”) is too broad to dispel the ambiguity as to whom the Trial Chamber found was a rank and file JCE member in paragraph 1087. Therefore, inasmuch as the Trial Chamber included persons in the JCE merely by reference to the JCE “rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others”, its identification of the JCE members is impermissibly vague. Sub-ground 3(A) submitted by Amicus Curiae is therefore granted.
 Limaj et al. Appeal Judgement, para. 99; Brđanin Appeal Judgement, para. 430. See also Stakić Appeal Judgement, para. 69.
 As to the effect of this finding on Krajišnik’s convictions, see infra III.C.11.
|Appeal Judgement - 27.09.2007||
LIMAJ et al.
99. As to the substantive elements for establishing joint criminal enterprise liability, the Trial Judgement’s section on the “Law on the forms of liability charged” correctly sets out the requirements for joint criminal enterprise liability as defined in the Tribunal’s jurisprudence. When examining the participation of the three Accused in a joint criminal enterprise, the Trial Chamber held that
[i]n the absence of evidence demonstrating that a group of individuals, whose identities could be established at least by reference to their category as a group, in the sense identified in the jurisprudence, furthered a common plan, and, given the lack of evidence as to the scope of any such plan, the principal elements of joint criminal enterprise have not been established.
A plain reading of this finding is that the Trial Chamber was not satisfied that the Prosecution had adduced sufficient evidence of the identity of the alleged participants in the joint criminal enterprise to establish a plurality of persons sharing a common plan existed. Thus, the Appeals Chamber is not satisfied that the Trial Chamber applied an erroneously narrow approach to the legal requirement of “identification” as argued by the Prosecution.
104. […] While the Appeals Chamber found that “[t]he principal perpetrators of the crimes constituting the common purpose […] should […] be identified as precisely as possible”, it held that it was sufficient for such an identification to establish that the principal perpetrators were “civilian and military authorities and/or guards and soldiers present at KP Dom”. Similarly, in Vasiljević, the Appeals Chamber accepted the finding of the Trial Chamber that a joint criminal enterprise to commit persecution existed, although two out of the three participants of the joint criminal enterprise were unidentified men. In Krstić, the Appeals Chamber accepted the finding of the Trial Chamber that a joint criminal enterprise to commit genocide existed, although “the Trial Chamber did not identify individual members of the Main Staff of the VRS as the principal participants in the genocidal enterprise”. By the same token, the Appeals Chamber held in Stakić that the participants in the joint criminal enterprise “included the leaders of political bodies, the army, and the police who held power in the Municipality of Prijedor”, without further identification. In addition, in Brđanin, the Appeals Chamber found that while a Chamber must “identify the plurality of persons belonging to the JCE […] it is not necessary to identify by name each of the persons involved”. In light of these findings, the Appeals Chamber is satisfied that no reasonable trier of fact could have found that it was impossible “to determine the identity of those involved in the operation of the prison camp, apart from the Accused Haradin Bala”. […]
 Trial Judgement, para. 511.
 Trial Judgement, para. 669 (emphasis added).
 Krnojelac Appeal Judgement, para. 116.
 Krnojelac Appeal Judgement, para. 116.
 Vasiljević Appeal Judgement, paras 130, 142.
 Krstić Appeal Judgement, para. 143.
 Stakić Appeal Judgement, para. 69.
 Brđanin Appeal Judgement, para. 430.
 Trial Judgement, para. 666.