Joint criminal enterprise

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 - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1696. […] [T]he Appeals Chamber considers that […] there is no express time frame included in the foreseeability standard […][1] […]

[1]           See [ainović et al. Appeal Judgement, paras 1061, 1557.

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

The Trial Chamber found that the Appellant was liable under JCE III for murder as a crime against humanity. At the same time, the Trial Chamber, without providing any further reasons, held that “in the circumstances of [the] killings arising from a JCE to Forcibly Remove – encompassing forcible transfer as other inhumane acts constituting a crime against humanity – his criminal responsibility is for murder as a crime against humanity and not as a war crime”. See para. 1710. The Appeals Chamber considered that the Trial Chamber’s scant reasoning as to why it acquitted the Appellant for war crimes suggests that the Trial Chamber required that the category of the JCE III crime must match that of the JCE I crime. See para. 1713.

1713. […] [T]he jurisprudence of the Tribunal does not require the category of the JCE I crime and the JCE III crime to match.[1] […]

[1]           See, e.g., Martić Appeal Judgement, para. 183, referring to Martić Trial Judgement, paras 454-455.

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Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber upheld the application of the third category of JCE.

83. […] For a finding of responsibility under the third category of JCE, it is not sufficient that an accused created the conditions making the commission of a crime falling outside the common purpose possible; it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed. […]

84. Turning to Martić’s claim that the third category of JCE is controversial as it “lowers the mens rea required for commission of the principal crime without affording any formal diminution in the sentence imposed”,[1] the Appeals Chamber recalls that it has already found that “in practice, this approach may lead to some disparities, in that it offers no formal distinction between JCE members who make overwhelmingly large contributions and JCE members whose contributions, though significant, are not as great.”[2] It is up to the trier of fact to consider the level of contribution – as well as the category of JCE under which responsibility attaches – when assessing the appropriate sentence, which shall reflect not only the intrinsic gravity of the crime, but also the personal criminal conduct of the convicted person and take into account any other relevant circumstance. This argument thus stands to be rejected.

[1] See, in particular, Defence Appeal Brief, para. 61.

[2] Brđanin Appeal Judgement, para. 432.

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Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber considered the mens rea requirement of JCE and, in particular, its application to omissions and whether there is a requirement of intent as to result.

139. As noted above,[1] the Trial Chamber did not convict Martić for his failure to intervene against the perpetrators of crimes committed against non-Serbs. Indeed, the Trial Chamber referred to Martić’s knowledge of and reaction to crimes committed against the non-Serb population, among other factors, to establish that the mens rea requirement for the JCE had been met.[2]

140. The Appeals Chamber notes that the issue of whether the Trial Chamber imposed something akin to an obligation of result upon Martić is of limited relevance to the issue of his mens rea. Whether or not Martić had an obligation of result or to intervene against the perpetrators of crimes committed against non-Serbs is unrelated to the issue of his knowledge of the existence of such crimes and his disposition towards them and the non-Serb population generally.

[1] See supra, para. 28.

[2] See Trial Judgement, paras 337-342, 451 and 454 […].

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Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber considered the link between Martić and the principal perpetrators of crimes who were not proven to be members of the JCE.

168. In Brđanin, the Appeals Chamber held that the decisive issue under the basic form of JCE was not whether a given crime had been committed by a member of the JCE, but whether this crime fell within the common criminal purpose of the JCE.[1] For the extended form of JCE, the accused may be found responsible provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk.[2] The Appeals Chamber thus held that members of a JCE could be held liable for crimes committed by principal perpetrators who were not members of the JCE provided that it had been shown that the crimes could be imputed to at least one member of the JCE and that this member, when using a principal perpetrator, acted in accordance with the common plan.[3]

171. In order to convict a member of a JCE for crimes committed by non-members of the JCE, a Trial Chamber must be satisfied beyond a reasonable doubt that the commission of the crimes by non-members of the JCE formed part of a common criminal purpose (first category of JCE), or of an organised criminal system (second category of JCE), or were a natural and foreseeable consequence of a common criminal purpose (third category of JCE).[4]

The application of the law is clear from the distinction between events in Cerovljani and Lipovača. The appeal was upheld in relation to events in Cerovljani:

191. The Trial Chamber also found that on 13, 21 and 24 September 1991, armed Serbs from Živaja led by Nikola Begović burnt ten houses and damaged the Catholic church in the village of Cerovljani. The Trial Chamber […] convicted Martić on the basis that the commission of the [corresponding] crimes was a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[5]

192. The Appeals Chamber finds that a reasonable trier of fact could not have reached the conclusion that Martić was responsible for the acts of destruction perpetrated by armed Serbs from Živaja led by Nikola Begović. Having due regard to the Trial Chamber’s findings and the evidence on which they relied,[6] the Appeals Chamber concludes that the Trial Chamber erred in establishing a link between Martić and these perpetrators. In particular, Exhibit 273, a witness statement of Antun Blažević, on which much of these findings depend, only suggests that the armed men under Begović had received weapons from the JNA, without any evidence of additional control or influence by Martić or other members of the JCE.[7] Without any further elaboration on the link between these forces and the JNA, no reasonable trier of fact could have held that the only reasonable conclusion in the circumstances was that these crimes could be imputed to a member of the JCE. The link between the principal perpetrators of these crimes and members of the JCE is therefore too tenuous to support Martić’s conviction.

However, the Appeal was dismissed in relation to events in Lipovača:

194. The Trial Chamber found that Serb paramilitary forces intentionally killed seven civilians in Lipovača towards the end of October 1991. The Trial Chamber […] convicted Martić on the basis that [the corresponding] crimes were a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[8]

195. The Appeals Chamber finds that a reasonable trier of fact could have reached the conclusion that Martić was responsible for the killings perpetrated in Lipovača by Serb paramilitary forces. The Appeals Chamber notes that, in its findings on the killings in Lipovača, the Trial Chamber referred to evidence establishing that the JNA had warned the villagers to beware of Serb paramilitary units that would arrive after the JNA left, that the Serb paramilitary units arrived after the JNA as warned and that these paramilitary units were called “reserve forces, Martić’s troops or Martić’s army” and wore uniforms like those of the army.[9] The Appeals Chamber is therefore satisfied that a reasonable trier of fact could have been satisfied beyond a reasonable doubt that the Serb paramilitary forces in question were in fact JNA or TO soldiers or were at least acting in concert with the JNA. Taking into account the warning provided by the JNA, the denomination of these troops and their uniforms, as well as the general pattern of take-over and criminal conduct in the area, it was reasonable for the Trial Chamber to conclude that these crimes were committed by a member of a paramilitary group with a link to a member of the JCE, and, therefore, that they were imputable to Martić as a participant in that JCE.

[1] Brđanin Appeal Judgement, paras 410, 418 and 431.

[2] Brđanin Appeal Judgement, para. 411.

[3] Brđanin Appeal Judgement, para. 413. See also Brđanin Appeal Judgement, para. 430.

[4] Brđanin Appeal Judgement, paras 410, 411 and 418.

[5] Trial Judgement, paras 454-455.

[6] Trial Judgement, paras 186-188, 360-361 and 363.

[7] See Trial Judgement, paras 186-188.

[8] Trial Judgement, paras 454-455.

[9] Trial Judgement, paras 202-203.

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

74. […] the Appeals Chamber cannot find any merit in the Appellant’s argument that the Indictment fails to refer to any sort of “organization” among these individuals. It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously.[1] Since “organization” is not an element of JCE, it need not be pleaded in the Indictment.

77. The Appeals Chamber recalls that while the JCE categories are mutually incompatible to the extent that a defendant may not be convicted of multiple categories based on the same conduct, an indictment may charge a defendant cumulatively with multiple categories.[2] The Appeals Chamber notes that the Appellant was convicted for his participation in a JCE based on the first category, and therefore restricts its inquiry to whether he was put on notice that the Prosecution intended to rely on that specific category.[3] In this regard, the Appeals Chamber recalls that the three categories of JCE vary only with respect to the mens rea element, not with regard to the actus reus.[4] Accordingly, an accused will have sufficient notice of the category of JCE with which he is being charged where the indictment pleads the mens rea element of the respective category.

see also Other Issues of Particular Interest” below citing para. 78 for application to the circumstances of the case.

[1] Kvočka et al. Appeal Judgement, para. 117; Tadić Appeal Judgement, para. 227 (ii). See also Vasiljević Appeal Judgement, para. 100.

[2] See, e.g. Delalic et al. Appeal Judgement, para. 400 ("Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice of both this Tribunal and the ICTR.").

[3] The Appellant’s arguments concerning the other categories, including the contention that it is a “mission impossible” to prove the elements of all three categories since they are mutually incompatible, need not be addressed as they could not have had any impact on the verdict.

[4] Tadić Appeal Judgement, paras 227, 228.

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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 - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

296. The Appeals Chamber agrees with the Prosecution that physical presence at the time a crime is committed by the physical perpetrator is not required for liability to be incurred by a participant in a JCE.[1] However, as conceded by the Prosecution,[2] it may be taken as an indicator of a co-perpetrator’s contribution. Here, the Trial Chamber considered that there was “no direct evidence of the presence of Simba” at Cyanika Parish.[3] This appears to have been relevant primarily as a basis for the Trial Chamber’s finding that there was no evidence to support the idea that he shared the intent to participate in the common purpose of killing Tutsi there.[4] After finding generally that a common purpose existed to kill Tutsi at the three sites, it found that the Appellant shared the common purpose of killing Tutsi at Murambi Technical School and Kaduha Parish, but expressed its doubt that he equally shared the common purpose of killing Tutsi at Cyanika Parish.[5] As explained by the Trial Chamber, this doubt arose from the fact that there was “no direct evidence linking the Appellant to Cyanika Parish or indicating that he knew and accepted that it would also form part of the operation”.[6] It is apparent from this language that the Trial Chamber’s consideration of this issue focused on his intent to participate in the common purpose to kill the Tutsi at this site.[7] Therefore the Trial Chamber’s inquiry was broader than mere physical presence. The Appeals Chamber sees no error in this approach.

[1] Prosecution Appeal Brief, para. 40; Kvočka Appeal Judgement, paras 112-113, 276.

[2] Prosecution Appeal Brief, para. 44.

[3] Trial Judgement, para. 399. See also para. 134.

[4] Trial Judgement, para. 407.

[5] Trial Judgement, paras 406-407.

[6]Trial Judgement, para. 407. The Trial Chamber noted that the “only evidence directly connecting him to the massacre comes from Witness KSU”, but noted that this evidence had been excluded (Trial Judgement, para. 134).

[7] Trial Judgement, paras 134-136.

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

90. The Appeals Chamber notes that, […] it is well established that “planning” is not an element of a JCE.[1]The material element of a JCE is the “common purpose”, and it is on this basis that the Trial Chamber convicted the Appellant for his participation in a JCE. […]

[1]Kvočka et al. Appeal Judgement, para. 117 (“Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime. The common purpose need not be previously arranged or formulated; it may materialize extemporaneously” (footnote omitted)). See also Section C-1(b), fn. 167. 

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Notion(s) Filing Case
Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

The Appeals Chamber addressed the issue of vagueness of an indictment following the principles laid out in the Kupreškić Appeal Judgement. The Appeals Chamber reaffirmed that the Prosecution should only plead the modes of responsibility on which it intends to rely, and that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment. Following ICTY and ICTR jurisprudence, the Appeals Chamber held that the mode of liability of joint criminal enterprise must be specifically pleaded in an indictment. The Appeals Chamber stressed that if the Prosecution is relying on the mode of liability of joint criminal enterprise, it is not sufficient for an indictment to charge an accused for “committing” the crimes in question under Article 7(1) of the Statute. It is not sufficient for the generic language of an indictment to encompass the possibility that joint criminal enterprise is being charged. See paragraphs 21 and 22.

21. The practice of both the International Tribunal and the ICTR requires that the Prosecution plead the specific mode or modes of liability for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from the practice of simply restating Article 7(1) of the Statute unless it intends to rely on all of the modes of liability contained therein, because of the ambiguity that this causes.[2] When the Prosecution is intending to rely on all modes of responsibility in Article 7(1), then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective.[3]  The Appeals Chamber further reaffirms that the Prosecution should only plead the modes of responsibility on which it intends to rely,[4] and considers that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment.[5]

22. Similarly, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the said term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both.[6] It is not enough for the generic language of an indictment to “encompass” the possibility that joint criminal enterprise is being charged.[7] The Appeals Chamber reiterates that joint criminal enterprise must be specifically pleaded in an indictment.[8] Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute; such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility.[9] Also, if the Prosecution relies on this specific mode of liability, it must plead the following material facts: the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants in the enterprise, and the nature of the accused’s participation in the enterprise.[10] In order for an accused charged with joint criminal enterprise to fully understand the acts he is allegedly responsible for, the indictment should also clearly indicate which form of joint criminal enterprise is being alleged.[11] The Appeals Chamber considers that failure to specifically plead joint criminal enterprise in the indictment in a case where the Prosecution intends to rely on this mode of liability will result in a defective indictment.[12]

The Appeals Chamber reiterated that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. See paragraph 24.

[1] Blaškić Appeal Judgement, para. 215; Semanza Appeal Judgement, para. 357. See also Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, para. 171, fn. 319; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the form of the Amended Indictment, 20 February 2001, para. 10; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000, para. 60.

[2] Semanza Appeal Judgement, para. 357; see also Ntakirutimana Appeal Judgement, para. 473; Blaskić Appeal Judgement, para. 228; Krnojelac Appeal Judgement, para. 138.

[3] Kvočka et al. Appeal Judgement, para. 29.

[4] Kvočka et al. Appeal Judgement, para. 41.

[5] Blaškić Appeal Judgement, para. 215.

[6] Krnojelac Appeal Judgement, para. 138.

[7] Gacumbitsi Appeal Judgement, para. 167.

[8] Gacumbitsi Appeal Judgement, paras 163 and 167; Ntagerura et al. Appeal Judgement, para. 24 ; Kvočka et al. Appeal Judgement, para. 42.

[9] Kvočka et al. Appeal Judgement, para. 42.

[10]  Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 28.

[11] Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 28, referring to Krnojelac Appeal Judgement, para. 138.

[12] Gacumbitsi Appeal Judgement, paras 162-163; Ntagerura et al. Appeal Judgement, para. 24; see Kvočka et al. Appeal Judgement, para. 42.

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Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

In footnote 290, the Appeals Chamber noted that:

As Mugiraneza suggests, the Indictment was confirmed before the ICTY Appeals Chamber had recognized the theory of joint criminal enterprise. Compare Trial Judgement, Annex A, para. 6 (noting that the Indictment was confirmed on 12 May 1999) with Tadić Appeal Judgement, para. 220 (concluding, in a judgement issued on 15 July 1999, that the notion of joint criminal enterprise is firmly established in customary international law). See also Trial Judgement, para. 1920. However, he fails to show how this fact demonstrates that the elements of the theory of joint criminal enterprise were omitted from the Indictment or that the Trial Chamber erred in finding that the Indictment reflected the Prosecution’s intent to pursue such a theory.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

161. In cases where the Prosecution intends to rely on a theory of joint criminal enterprise, it must plead the purpose of the enterprise, the identity of its participants, the nature of the accused’s participation in the enterprise, and the period of the enterprise. The indictment should also clearly indicate which form of joint criminal enterprise is being alleged. Failure to specifically plead joint criminal enterprise, including the supporting material facts and the category, constitutes a defect in the indictment.

162. In the Simba Appeal Judgement, the Appeals Chamber determined that an indictment properly pleaded the identity of the participants by identifying the physical perpetrators by general category, such as Interahamwe, and then further identifying them with geographic and temporal details related to each massacre site.[4] The Indictment in the present case provides the same degree of specificity when the reference to the Bugarama Interahamwe in paragraph 4 of the Indictment is read together with paragraphs 13 and 14, alleging that Munyakazi and the Bugarama Interahamwe attacked and killed Tutsi civilians at Shangi and Mibilizi parishes, respectively, on 29 and 30 April 1994. Accordingly, the Trial Chamber erred in law in concluding that the reference to the Bugarama Interahamwe was too vague and in limiting its consideration of the evidence to only the named participants.

[1] Simba Appeal Judgement, para. 63.

[2] Simba Appeal Judgement, para. 63.

[3] Simba Appeal Judgement, para. 63.

[4] Simba Appeal Judgement, paras. 71, 72, quoting Simba Trial Judgement, paras. 392, 393.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

160. The Appeals Chamber recalls that the actus reus for participation in a joint criminal enterprise requires: (i) a plurality of persons; (ii) the existence of a common purpose (or plan) which amounts to or involves the commission of a crime encompassed by the Statute; and (iii) the participation of the accused in this common purpose. The basic form of joint criminal enterprise, which is at issue in this case, requires that the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission.

163. […] The Trial Chamber concluded that “Munyakazi was as much an integral part of [the] killings as those he enabled” and thus convicted him based on his role in the attacks at Shangi and Mibilizi parishes under Article 6(1) of the Statute for committing genocide and extermination as a crime against humanity. Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. Therefore, a finding that Munyakazi participated in a joint criminal enterprise in connection with the crimes for which he was convicted would have no bearing on the verdict. Munyakazi’s conviction is based on his committing the crimes, which fully encapsulates his criminal conduct.

[1] See Brđanin Appeal Judgement, para. 364. See also Ntakirutimana Appeal Judgement, paras. 463, 466.

[2] See Brđanin Appeal Judgement, para. 365. See also Ntakirutimana Appeal Judgement, para. 467.

[3] Trial Judgement, para. 491. See also Trial Judgement, paras. 501, 508.

[4] Nahimana et al. Appeal Judgement, para. 478; Ntagerura et al. Appeal Judgement, para. 24; Ntakirutimana Appeal Judgement, para. 452. See also Krnojelac Appeal Judgement, para. 29, quoting Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 20.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

227. In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:

i. A plurality of persons. They need not be organised in a military, political or administrative structure, as is clearly shown by the Essen Lynching and the Kurt Goebell cases.

ii. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute.  There is no necessity for this plan, design or purpose to have been previously arranged or formulated.  The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

iii. Participation of the accused in the common design involving 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 those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.

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Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

229. In light of the preceding propositions it is now appropriate to distinguish between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting. 

(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.

(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan.  No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contribution.

(iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime.  By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose.

(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.  By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

In paragraphs 185 to 219 the Appeals Chamber conducted an analysis in order to ascertain whether criminal responsibility for participating in a common criminal purpose falls within the ambit of Article 7(1) of the Statute. In paragraphs 195–219 national case-law is reviewed so as to identify customary international law. The Appeals Chamber concluded:

220. In sum, the Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal. As for the objective and subjective elements of the crime, the case law shows that the notion has been applied to three distinct categories of cases. First, in cases of co-perpetration, where all participants in the common design possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, with intent). Secondly, in the so-called “concentration camp” cases, where the requisite mens rea comprises knowledge of the nature of the system of ill-treatment and intent to further the common design of ill-treatment. Such intent may be proved either directly or as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy.  With regard to the third category of cases, it is appropriate to apply the notion of “common purpose” only where the following requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal purposes of that enterprise; and (ii) the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have been able to predict this result.  It should be noted that more than negligence is required.  What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk.  In other words, the so-called dolus eventualis is required (also called “advertent recklessness” in some national legal systems).

At paragraphs 221 to 225, the Appeals Chamber then considered international treaties, case-law and legislation. It concluded:

226. The Appeals Chamber considers that the consistency and cogency of the case law and the treaties referred to above, as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general international criminal law and in national legislation, warrant the conclusion that case law reflects customary rules of international criminal law.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

228.  By contrast, the mens rea element differs according to the category of common design under consideration.  With regard to the first category, what is required is the intent to perpetrate a certain crime  (this being the shared intent on the part of all co-perpetrators).  With regard to the second category (which, as noted above, is really a variant of the first), personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment.  With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group.  In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.

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Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

325. The Appeals Chamber recalls that in order to find an individual liable for the commission of a crime through a basic joint criminal enterprise:

[a] trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime […] did in fact take place. Where the principal perpetrator is not shown to belong to the [joint criminal enterprise], the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the [joint criminal enterprise] (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise; and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible.[1]

[1] Gotovina and Markač Appeal Judgement, para. 89, quoting Brđanin Appeal Judgement, para. 430 (references omitted). See also Krajišnik Appeal Judgement, para. 662.

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Decision on Joint Criminal Enterprise - 22.10.2004 RWAMAKUBA André
(ICTR-98-44-AR72.4)

31. [...] The Appeals Chamber holds that customary international law recognized the application of the mode of liability of joint criminal enterprise to the crime of genocide before 1992, and that in consequence the statement to that effect in the Tadić Appeal Judgement was legally correct. Consequently, the International Tribunal has jurisdiction to try the Appellant on a charge of genocide through the mode of liability of joint criminal enterprise.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

609. […] The Appeals Chamber recalls that JCE liability requires “the existence of a common purpose which amounts to, or involves, the commission of a crime” and that the common purpose need not be previously arranged or formulated; it may materialise extemporaneously.[1] Thus, while the existence of a common purpose at the time of the crimes is one of the elements of JCE liability, the date of its formation is not.[2] […]

[1] Brđanin Appeal Judgement, para. 418. See also Stakić Appeal Judgement, para. 64; Tadić Appeal Judgement, para. 227(ii). See also Vasiljević Appeal Judgement, paras 100, 109.

[2] See Brðanin Appeal Judgement, paras 364, 418; Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, para. 81; Vasiljević Appeal Judgement, para. 100; Tadić Appeal Judgement, para. 227. 

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

611. […] the Appeal Chamber recalls that JCE liability requires the existence of “a common plan, design or purpose” amounting to, or involving the commission of a crime.[1] Such a common plan, design, or purpose may “be inferred from the facts”,[2] including events on the ground.[3] […]

[…]

654. […] [I]n view of the magnitude of forcible displacement committed in an orchestrated manner and showing a discernible pattern as well as the extensive seizure and destruction of IDs during the forcible displacement, the Appeals Chamber is satisfied that the evidence regarding these two factors is sufficient for a reasonable trier of fact to find that the only reasonable inference is that a common purpose to forcibly displace a number of Kosovo Albanians existed.[4]

[1] Tadić Appeal Judgement, para. 227(ii) (emphasis omitted). See also Krajišnik Appeal Judgement, paras 184-185; Brđanin Appeal Judgement, paras 364, 418; Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, paras 81, 96, 117; Vasiljević Appeal Judgement, para. 100.

[2] Vasiljević Appeal Judgement, para. 100; Tadić Appeal Judgement, para. 227(ii).

[3] See, e.g., Martić Trial Judgement, paras 442-445 (affirmed by Martić Appeal Judgement, paras 92-116); Krajišnik Trial Judgement, para. 1097 (affirmed by Krajišnik Appeal Judgement, paras 192, 605-647). See also Trial Judgement [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Judgement, 26 February 2009], vol. 1, para. 102.

[4] Trial Judgement, vol. 3, paras 95-96.

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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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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1557. The Appeals Chamber finds that the Trial Chamber erred in law in concluding that for JCE III liability to arise, it must be foreseeable to the accused that the crime “would be committed”.[1] The Appeals Chamber recalls that the jurisprudence subsequent to the Brđanin Decision[2] confirmed that JCE III liability arises even if the JCE member knows that the commission of the crime is only a “possible consequence” of the execution of the common purpose.[3] It is necessary “that the possibility a crime could be committed is sufficiently substantial as to be foreseeable to the accused.”[4] The correct legal standard for the JCE III mens rea requires that it was foreseeable to the accused that such a crime might be committed by a member of the JCE or one or more of the persons used by the accused (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose[5] and the accused willingly took the risk that such a crime might occur by joining or continuing to participate in the enterprise.[6] The Appeals Chamber discerns no cogent reason to depart from its jurisprudence on this matter.

1558. Furthermore, the Appeals Chamber finds no merit in Šainović’s assertion that the Trial Chamber’s approach is “deeply compatible and consistent”[7] with the Appeals Chamber’s affirmation of the “possibility” standard. While it is necessary that the crime be foreseeable based on the “information available to the accused”,[8] this does not reflect the degree of foreseeability required. It is the degree of foreseeability that marks the difference between the “possibility” and “probability” standards. Šainović’s argument is therefore dismissed. The Appeals Chamber further considers that awareness of a higher likelihood of risk and a volitional element are reflected in the mens rea for JCE III. The Appeals Chamber recalls in this respect that “criminal responsibility may be imposed upon an actor for a crime falling outside [the common purpose], even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur, and nevertheless participated in the [JCE]” because the accused already possesses the intent to participate and further the common criminal purpose of a group.[9] Lukić’s argument is accordingly dismissed.

[…]

1575. The question of whether persecution, through sexual assaults, committed in Beleg, Ćirez/Qirez, and Priština/Prishtina were foreseeable to Šainović and Lukić must be assessed in relation to their individual knowledge. Depending on the information available, what may be foreseeable to one member of a JCE, might not be foreseeable to another.[10] Consequently, the Appeals Chamber will consider whether it was foreseeable to them, individually, that sexual assaults could be committed and that they willingly took that risk. While the Appeals Chamber is cognisant that situations of widespread violence against the civilian population are conducive to the commission of a wide range of criminal acts, for JCE III liability to arise it must be established that the possibility of sexual violence being committed was sufficiently substantial as to be foreseeable to each accused.[11]

[1] Trial Judgement, vol. 1, para. 111, referring to Brđanin Decision [Prosecutor v. Brđanin, Case No. IT-99-36-AR73.10, Decision on Interlocutory Appeal, 19 March 2004], para. 5, Martić Appeal Judgement, para. 83.

[2] The Appeals Chamber notes that paragraph 5 of the Brđanin Decision reads: for an accused to be convicted of a crime under the third category of JCE, it is required to be “reasonably foreseeable to him” that the crime “would be committed” (emphasis added).

[3] Karadžić JCE III Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009], paras 15, 17-18, referring to Vasiljević Appeal Judgement, para. 101, Brđanin Appeal Judgement, paras 365, 411, Stakić Appeal Judgement, paras 65, 87, Blaškić Appeal Judgement, para. 33, Martić Appeal Judgement, para. 168, Krnojelac Appeal Judgement, para. 32, Kvočka et al. Appeal Judgement, para. 83, Deronjić Judgement on Sentencing Appeal, para. 44. The Appeals Chamber further notes that insofar as the Trial Chamber suggested that paragraph 83 of the Martić Appeal Judgement also supports its definition, it was mistaken as the formulation adopted in the Martić Appeal Judgement reflects the “possibility” standard: “it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed” (see Martić Appeal Judgement, para. 83, emphasis added).

[4] Karadžić JCE III Decision, para. 18.

[5] Brđanin Appeal Judgement, paras 365, 411.

[6] Kvočka et al. Appeal Judgement, para. 83, referring to Tadić Appeal Judgement, paras 204, 220, 228; Vasiljević Appeal Judgement, para. 99.

[7] Šainović’s Response Brief [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Defence Respondent’s Brief, 2 November 2009], para. 56.

[8] Trial Judgement, vol. 1, para. 111. See also Brđanin Appeal Judgement, para. 365, referring to Tadić Appeal Judgement, para. 220, Kvočka et al. Appeal Judgement, para. 86, Blaškić Appeal Judgement, para. 33, Stakić Appeal Judgement, paras 65, 99-103.

[9] Blaškić Appeal Judgement, para. 33.

[10] Brđanin Appeal Judgement, para. 365, referring to Tadić Appeal Judgement, para. 220, Kvočka et al. Appeal Judgement, para. 86, Blaškić Appeal Judgement, para. 33, Stakić Appeal Judgement, paras 65, 99-103.

[11] See Karadžić JCE III Decision, para. 18.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1014. The Appeals Chamber is concerned that, in relying on Šainović’s knowledge of events which occurred in 1998 [to find that Šainović shared the intent to forcibly displace the Kosovo Albanian population in 1999], the Trial Chamber used language suggesting that it might have erred in law in relation to the mens rea standard for JCE I. In particular, the Trial Chamber’s reference to Šainović’s ability “to predict” the situation in 1999[1] resembles the foreseeability standard embedded in the mens rea for JCE III.[2] Pursuant to JCE I, the accused must share the intent for the commission of the crimes alleged in the Indictment and not merely foresee their occurrence.[3] In assessing whether the Trial Chamber indeed applied an erroneous mens rea standard, the Appeals Chamber will consider the broader context of the Trial Chamber’s findings.

[…]

1016. Further, to what extent in relation to the mens rea for JCE I a trial chamber may rely on the accused’s knowledge of the commission of past crimes, as circumstantial evidence among others, will necessarily depend on the circumstances of the particular case. The Appeals Chamber considers that relevant evidence may include the type of crimes that were committed, the circumstances of their commission, the identity of the perpetrators, and the geographical and temporal scope. […].

See also paras 1019, 1199, 1470.

[1] Trial Judgement, vol. 3, para. 456.

[2] Kvočka et al. Appeal Judgement, para. 83, referring to Tadić Appeal Judgement, paras 204, 220, 228; Vasiljević Appeal Judgement, para. 99. See also Brđanin Appeal Judgement, paras 365, 411.

[3] See Tadić Appeal Judgement, para. 228.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1256. The Appeals Chamber recalls that the essential requirement for holding a JCE member responsible for a crime under the first category of JCE is that the crime formed part of the common purpose of the JCE. In this respect, the Appeals Chamber recalls that JCE members may be held responsible for crimes carried out by principal perpetrators who were non-JCE members, provided that it has been shown that the crimes can be imputed to at least one JCE member and that the latter – when using the principal perpetrators – acted in accordance with the common objective.[2] The existence of this link between the crimes in question and a JCE member is to be assessed on a case-by-case basis.[3]

1257. Pavković’s argument that the Trial Chamber failed to examine whether he closely cooperated with the principal perpetrators for each crime charged is without merit. Close cooperation between a principal perpetrator and a JCE member, including the accused, is but one of various factors from which a chamber may infer that a crime formed part of the common purpose and is thus imputable to JCE members. It is not a prerequisite for imputing the crime to JCE members. Pavković’s argument in this regard is based on a misunderstanding of the law and is therefore dismissed.

1258. […] The Trial Chamber only imputed crimes to the JCE members at various sites, once it was satisfied that there was sufficient evidence to identify principal perpetrators as members of the VJ and/or the MUP.[6] Given the prominent positions of JCE members such as Milošević, Šainović, Pavković, and Lukić and their significant power over the VJ and/or the MUP in Kosovo,[7] the Trial Chamber’s findings regarding the principal perpetrators at each crime site was sufficiently specific to identify them as persons used by one of the JCE members.[8] […]

1259. The Appeals Chamber is not persuaded by Pavković’s assertions that in order to incur liability for using a principal perpetrator as a tool, a JCE member must have ordered or instructed the principal perpetrator to commit the crime and that there was no evidence of any such orders.[9] A JCE member’s order or instruction to non-JCE members to commit a crime is not a sine qua non prerequisite but one of several factors which may be taken into account by a chamber when determining whether to impute the crime to that JCE member.[10]

1260. There is no merit in Pavković’s arguments that it was inappropriate to charge him with “committing” crimes as those who carried out the actus reus of the crimes were not members of the JCE[11] and that, if it were proven that he or other JCE members ordered non-JCE members to commit crimes, “ordering” would have been the appropriate mode of liability.[12] The Appeals Chamber recalls that it has “consistently held that participation in a JCE is a form of ‘commission’ under Article 7(1) of the Statute.” […]

[1] Martić Appeal Judgement, para. 168; Brđanin Appeal Judgement, paras 410, 418.

[2] Krajišnik Appeal Judgement, para. 225; Martić Appeal Judgement, para. 168; Brđanin Appeal Judgement, para. 413.

[3] Krajišnik Appeal Judgement, para. 226; Martić Appeal Judgement, para. 169; Brđanin Appeal Judgement, para. 413. See also Brđanin Appeal Judgement, para. 410; Krajišnik Appeal Judgement, paras 226, 237-282; Martić Appeal Judgement, paras 174-181, 187-189, 205-206, regarding factors indicative of such a link.

[4] Pavković’s Appeal Brief [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, General Pavković’s Amended Appeal Brief, 30 September 2009, annexed to General Pavković’s Submission of his Amended Appeal Brief, 30 September 2009], paras 20, 23.

[5] Brđanin Appeal Judgement, para. 410.

[6] Trial Judgement, vol. 3, paras 468, 475, 783, 788, 1132, 1138. When the evidence was insufficient for such identification of principal perpetrators, the Trial Chamber found that their identity was not established and did not link their crimes with any JCE member for the purpose of determining the criminal responsibility of Sainović, Pavković, and Lukić (see e.g., Trial Judgement, vol. 2, paras 121-122, 144, 161, 164, 396, 440-460, 667-668, 692, 710, 730, 798, 943, 945, 1077, 1110-1111, 1117, 1129, 1137, 1140, 1143, 1149 (compare with ibid., vol. 3, paras 475, 788, 1138)).

[7] See Trial Judgement, vol. 3, paras 468, 783, 1132.

[8] See Martić Appeal Judgement, paras 188, 192, 195, 198, 200, 205; Krajišnik Appeal Judgement, paras 239-247, 250-282.

[9] Pavković’s Appeal Brief, paras 37-38, 40.

[10] See Krajišnik Appeal Judgement, para. 226, holding that factors indicative of a link between crimes committed by non-JCE members and members of the JCE include “evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime.”

[11] Pavković’s Appeal Brief, paras 30-31, 34.

[12] Pavković’s Appeal Brief, paras 37-38.

[13] Krajišnik Appeal Judgement, para. 662; Kvočka et al. Appeal Judgement, paras 79-80; Tadić Appeal Judgement, paras 188, 190-191, 226-228. Cf. Brđanin Appeal Judgement, fn. 891; Krajišnik Appeal Judgement, para. 664.

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Decision on JCE III Foreseeability - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.4)

In its Impugned Decision,[1] the Trial Chamber held that the most appropriate formulation for the mental element of the third form of JCE (“JCE III”) is “reasonably foreseeable consequences”,[2] i.e. “foresight by the accused that the deviatory crimes would probably be committed”,[3] as opposed to the Indictment’s reference to “possible consequence”.[4] It further noted that “while subsequent jurisprudence has referred on various occasions to possibility and probability, there does not appear to have been a rejection at any stage of the test set in [the] Tadić [Appeal Judgement]”.[5]

The Appeals Chamber clarified the existing jurisprudence, stating that

14. […] the Tadić Appeal Judgement deploys a range of diverse formulations in setting out the mens rea element of JCE III.[6] These include several formulations that tend more towards a possibility than a probability standard. For example, one paragraph of the Tadić Appeal Judgement partly defines the mens rea of JCE III as requiring “the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose”,[7] while another partly summarizes the requirement as: “it was foreseeable that […] a crime might be perpetrated by one or other members of the group”.[8] The variable formulations present in the Tadić Appeal Judgement at minimum suggest that it did not definitively set a probability standard as the mens rea requirement for JCE III.[9]

15. While the Tadić Appeal Judgement does not settle the issue of what likelihood of deviatory crimes an actor must be aware of to allow conviction under JCE III, subsequent Appeals Chamber jurisprudence does. For example, the Brđanin Appeal Judgement explained that:

[in the case of] crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated … in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.[10]

More broadly, a significant number of Appeals Judgements have adopted formulations suggestive of a possibility standard rather than a probability one. Thus, the Vasiljević, Brđanin, Stakić, Blaškić, Martić and Krnojelac Appeal Judgements all deploy the Tadić Appeal Judgement phrase “foreseeable that such a crime might be perpetrated” in defining the JCE III mens rea requirement.[11] Most of these Appeal Judgements further explain that liability attaches even if an actor knows that perpetration of a crime is only a “possible consequence” of the execution of the common purpose.[12] 

16. Much of the jurisprudence that Karadžić advances in support of a probability standard does not support his point or is at best ambiguous.[13] Thus the Blaskić Appeal Judgement, which Karadžić claims “rejected the lower mens rea standard proposed by the [P]rosecution”[14] actually states with regards to JCE III mens rea that: “criminal responsibility may be imposed upon an actor for a crime falling outside the originally contemplated enterprise, even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur”.[15] Karadžić is also mistaken in suggesting that the Krstić Appeal Judgement is inconsistent with a “possibility standard”. The Appeals Chamber used the ambiguous phrase “probability that other crimes may result” in defining the mens rea for JCE III,[16] a formulation that is potentially consistent with a possibility standard, especially in the context of prior and subsequent Appeals Chamber Judgements.[17] 

The Appeals Chamber emphasized that the probability standard adopted in paragraph 5 of the Brđanin Decision[18] has been implicitly overruled by subsequent Appeals Chamber’s jurisprudence, including the Brđanin and Blaškić Appeal Judgements.[19]. In the present decision, the Appeals Chamber identified the level of certainty required to meet the JCE III mens rea standard:

18. Reviewing the Appeals Chamber’s jurisprudence convincingly demonstrates that JCE IIImens rea does not require a “probability” that a crime would be committed. Thus it is not necessary to address Karadžić’s contentions regarding customary international law. It is, however, worth noting that the term “possibility standard” is not satisfied by implausibly remote scenarios. Plotted on a spectrum of likelihood, the JCE III mens rea standard does not require an understanding that a deviatory crime would probably be committed; it does, however, require that the possibility a crime could be committed is sufficiently substantial as to be foreseeable to an accused. The Indictment pleads just such a standard.[20]

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, 28 April 2009 (“Impugned Decision”).

[2] Ibid. para. 56.

[3] Ibid. para. 55.

[4] Indictment para. 10; see also Impugned Decision, paras 50, 56.

[5] Impugned Decision, para. 55.

[6] See id., paras 49-50, Response [Response to Prosecution Appeal of Decision on JCE III – Foreseeability, 25 May 2009], para. 29.

[7] Tadić Appeal Judgement, para. 220.

[8] Ibid. [Tadić Appeal Judgement] para. 228 (emphasis omitted).

[9] Insofar as the Impugned Decision suggests that paragraph 232 of the Tadić Appeal Judgement, which states that Tadić “was aware that the actions of the group of which he was a member were likely to lead to [...] killings” definitively settled on a probability standard, see para. 50, it would appear to be mistaken. The Appeals Chamber’s factual conclusion demonstrated that Tadić either met or exceeded the standard for JCE III mens rea, but did not definitively indicate where the standard lay on any spectrum of likelihood.

[10] Brđanin Appeal Judgement, para. 411 (emphasis added). See also ibid. para. 365.

[11] Vasiljević Appeal Judgement, para. 101; Brđanin Appeal Judgement, paras. 365, 411; Stakić Appeal Judgement, para. 65; Blaškić Appeal Judgement, para. 33; Martić Appeal Judgement, para. 168; Krnojelac Appeal Judgement, para. 32 (emphases, citations and quotations omitted). See also Kvočka Appeal Judgement, para. 83.

[12] Vasiljević Appeal Judgement, para. 101; Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 87; Blaškić Appeal Judgement, para. 33. See also Deronjić Appeal Judgement, para. 44.

[13] Karadžić does accurately contend that the Gotovina Decision [Prosecutor v. Gotovina et al., Case No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction, 6 June 2007] is not relevant to determining the standard of mens rea required for JCE III, see Response, para. 20. The Gotovina Decision simply decided that the specifics of JCE III mens rea did not qualify as a jurisdictional question, see para. 24. Thus it supports neither Karadžić’s nor the Prosecution’s contentions.  

[14] Response, para. 16 (emphasis omitted).

[15] Blaškić Appeal Judgement, para. 33.

[16] Krstić Appeal Judgement, para. 150 (emphasis added).

[17] Paragraph 147 of the Krstić Appeal Judgement, contrary to Karadžić’s contentions, Response para. 24, simply states the level of certainty that Krstić enjoyed, rather than defining the minimum required level of JCE III mens rea.

[18] Prosecutor v. Brđanin, Case No. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004.

[19] Brđanin Appeal Judgement, para. 365; Blaškić Appeal Judgement, para. 33.

[20] Cf. Tadić Appeal Judgement, para. 204; Kvočka Appeal Judgement, para. 86; Impugned Decision, para. 56.

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Notion(s) Filing Case
Decision on Joinder - 27.01.2006 TOLIMIR et al.
(IT-04-80-AR73.1)

The Appellant was arguing that the Trial Chamber erred in finding that it could regulate the cross-examination of witnesses. In his view, this would violate both his right to cross-examine witnesses under Article 21(4)(e) of the Statute and Rule 82(A) of the Rules according to which in “joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.”

The Appeals Chamber found the following:

29. […] The Trial Chamber was correct to note that in a joint trial, a Trial Chamber has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. Rule 90(F) specifically provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.” Of course, this power is subject to Trial Chamber’s obligation to respect the rights of an accused, including the right to cross-examine witnesses under Article 21(4)(e) of the Statute.[1] The Appellant fails to show how the Trial Chamber’s regulation of the cross-examination of witnesses in this joint trial by, for example, avoiding repetitive questioning, would result in prejudice to him. Rather, the Trial Chamber’s regulation should mitigate any potential prejudice to him. At trial, the Appellant will have the opportunity to object where he feels that the Trial Chamber has erred in finding that another Accused’s cross-examination of a witness is sufficient to cover his defence such that he does not need to also engage in cross-examination of that same witness. The Trial Chamber will consider each objection carefully under its obligation to respect norms of due process and the rights of the Appellant. 

[1] Article 20(1) of the Statute requires that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused […]” (emphasis added).

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 48;
Rule 82(A);
Rule 90(F)
ICTY Rule Rule 48;
Rule 82(A);
Rule 90(F)
Notion(s) Filing Case
Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

79. The Indictment alleges that JCE members, including Karadžić, used others to carry out the crimes forming part of the JCE’s common purpose, including members of the Bosnian Serb forces.[1] The Appeals Chamber recalls that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member—when using the principal perpetrators—acted in accordance with the common objective.[2] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[3] The Appeals Chamber further recalls that the relevant question in the context of JCE I liability is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose; it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that the non-JCE member knew of the existence of the JCE.[4] Therefore, in accordance with the allegations underlying Count 1 of the Indictment, it is the genocidal intent of Karadžić and other alleged JCE members, not the physical perpetrators of the underlying alleged genocidal acts, that is determinative for purposes of JCE I.

[1] Indictment [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Marked-Up Indictment, 19 October 2009, Appendix A], paras 11-14. See also Indictment, para. 37; Appeal Brief [Prosecution Rule 98bis Appeal Brief, 25 September 2012], para. 91.

[2] Krajišnik Appeal Judgement, para. 225. See also Brđanin Appeal Judgement, paras 413, 430.

[3] Krajišnik Appeal Judgement, para. 225. See also Brđanin Appeal Judgement, para. 410.

[4] Krajišnik Appeal Judgement, para. 226. See also Brđanin Appeal Judgement, para. 410.

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Notion(s) Filing Case
Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

80. The Appeals Chamber also recalls that by its nature, genocidal intent is not usually susceptible to direct proof.[1] As recognised by the Trial Chamber,[2] in the absence of direct evidence, genocidal intent may be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy.[3]

[1] Gacumbitsi Appeal Judgement, para. 40. See also Rutaganda Appeal Judgement, para. 525; Kayishema and Ruzindana Appeal Judgement, para. 159.

[2] T. 28 June 2012 p. 28768. See alsoT. 28 June 2012 p. 28751.

[3] Jelisić Appeal Judgement, paras 47-48. See also Krstić Appeal Judgement, para. 34; Hategekimana Appeal Judgement, para. 133; Gacumbitsi Appeal Judgement, paras 40-41.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

[1] Gacumbitsi Appeal Judgement, para. 167; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, paras. 22, 31.

[2] Simba Appeal Judgement, para. 63; Gacumbitsi Appeal Judgement, para. 162; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, para. 22.

[3] Simba Appeal Judgement, para. 63; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, para. 22.

[4] Simba Appeal Judgement, para. 77.

[5] See Amended Indictment [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Amended Indictment, 23 November 2010 ], third chapeau paragraph under Counts 1 and 2.

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Notion(s) Filing Case
Appeal Judgement - 25.02.2004 VASILJEVIĆ Mitar
(IT-98-32-A)

102.  Participation in a joint criminal enterprise is a form of “commission” under Article 7(1) of the Statute.  The participant therein is liable as a co-perpetrator of the crime(s).  Aiding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime.  In the context of a crime committed by several co-perpetrators in a joint criminal enterprise, the aider and abettor is always an accessory to these co-perpetrators, although the co-perpetrators may not even know of the aider and abettor’s contribution.  Differences exist in relation to the actus reus as well as to the mens rea requirements between both forms of individual criminal responsibility:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime.  By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal.  By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.

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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)

463. In the jurisprudence of the ICTY three categories of joint criminal enterprise have been identified as having the status of customary international law.[1] The first category is a “basic” form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention.[2] An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill. This form of joint criminal enterprise is the only one relevant to the present case and will be the focus thereafter.[3]

464. The second category is a “systemic” form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment.[4] An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise.

465. The third category is an “extended” form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose.[5] An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians.

466. For joint criminal enterprise liability to arise an accused must act with a number of other persons. They need not be organised in a military, political or administrative structure.[6] There is no necessity for the criminal purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts.[7] […]

[1] See in particular Tadić Appeal Judgement, paras. 195-226, describing the three categories of cases following a review of the relevant case-law, relating primarily to many war crimes cases tried after the Second World War. See also Krnojelac Appeal Judgement, paras. 83-84.

[2] Tadić Appeal Judgement, para. 196. See also Krnojelac Appeal Judgement, para. 84, providing that, “apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent.”

[3] For a description of the second and third, respectively “systemic” and “extended”, forms of joint criminal enterprise, see Tadić Appeal Judgement, paras. 202-204 and Vasiljević Appeal Judgement, paras. 98-99).

[4] Tadić Appeal Judgement, paras. 202-203. Although the participants in the joint criminal enterprises of this category tried in the cases referred to were most members of criminal organizations, the Tadić case did not require an individual to belong to such an organization in order to be considered a participant in the joint criminal enterprise. The Krnojelac Appeal Judgement found that this “systemic” category of joint criminal enterprise may be applied to other cases and especially to serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, para. 89. See also Vasiljević Appeal Judgement, para. 98.

[5] Tadić Appeal Judgement, para. 204, which held that “[c]riminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.” See also Vasiljević Appeal Judgement, para. 99.

[6] Tadić Appeal Judgement, para. 227, referring to the Essen Lynching and the Kurt Goebell cases.

[7]  Id., where the Tadić Appeal Chamber uses the terms, “purpose”, “plan”, and “design” interchangeably.

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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 - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

467. The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).[1] The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment.[2] Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or, in any event, to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk”[3] – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise.

[1] Tadić Appeal Judgement, paras. 196 and 228. See also Krnojelac Appeal Judgement, para. 97, where the Appeals Chamber considers that, “by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadić case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers - the principal perpetrators of the crimes committed under the system - to commit those crimes.” See also Vasiljević Appeal Judgement, para. 101.

[2] Tadić Appeal Judgement, paras. 202, 220 and 228.

[3]  Id., para. 228. See also paras. 204 and 220.

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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)

468. The Appeals Chamber notes that while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only the second ICTR case in which the Appeals Chamber has been called upon to address this issue.[1] Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.

[1] See Prosecutor v André Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004.

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Notion(s) Filing Case
Decision on JCE III - 19.03.2004 BRĐANIN Radoslav
(IT-99-36-A)

5. The elements of a crime are those facts which the Prosecution must prove to establish that the conduct of the perpetrator constituted the crime alleged. However, participants other than the direct perpetrator of the criminal act may also incur liability for a crime, and in many cases different mens rea standards may apply to direct perpetrators and other persons.[1] The third category of joint criminal enterprise liability is, as with other forms of criminal liability, such as command responsibility or aiding and abetting, not an element of a particular crime. It is a mode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence.[2] An accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed. Rather, it is sufficient that that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed.

6. For example, an accused who enters into a joint criminal enterprise to commit the crime of forcible transfer shares the intent of the direct perpetrators to commit that crime. However, if the Prosecution can establish that the direct perpetrator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence. Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent.[3]

7. As a mode of liability, the third category of joint criminal enterprise is no different from other forms of criminal liability which do not require proof of intent to commit a crime on the part of an accused before criminal liability can attach. Aiding and abetting, which requires knowledge on the part of the accused and substantial contribution with that knowledge, is but one example. Command responsibility liability, which requires the Prosecution to establish that a Commander knew or had the reason to know of the criminality of subordinates, is another.

8. This is the approach that the Appeals Chamber has taken with respect to aiding and abetting the crime of persecution. An accused will be held criminally responsible as an aider and abettor of the crime of persecution where, the accused is aware of the criminal act, and that the criminal act was committed with discriminatory intent on the part of the principal perpetrator, and that with that knowledge the accused made a substantial contribution to the commission of that crime by the principal perpetrator.[4]

9. The fact that the third category of joint criminal enterprise is distinguishable from other heads of liability is beside the point. Provided that the standard applicable to that head of liability, i.e. “reasonably foreseeable and natural consequences” is established, criminal liability can attach to an accused for any crime that falls outside of an agreed upon joint criminal enterprise.

10. The Trial Chamber erred by conflating the mens rea requirement of the crime of genocide with the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused. The Decision of the Trial Chamber to acquit Brdanin of Count 1 of the Indictment, genocide, with respect to the third category of joint criminal enterprise liability is reversed.

[1] Vasiljević Appeal [Prosecutor v Vasiljević, Case No. IT-98-33-A, Judgement, 25 February 2004], par 102.

[2] Appeal Brief [Prosecution’s Appeal from Trial Chamber’s Decision Pursuant to 98bis, 10 December 2003], par 16.

[3] See also the example given in Vasiljević Appeal, par 99.

[4] Prosecutor v Krnojelac, Appeals Judgment, Case IT-97-25-A, 17 September 2003, par 52.

. The Trial Chamber erred by conflating the mens rea requirement of the crime of genocide with the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused. The Decision of the Trial Chamber to acquit Brdanin of Count 1 of the Indictment, genocide, with respect to the third category of joint criminal enterprise liability is reversed.

[1] Vasiljević Appeal [Prosecutor v Vasiljević, Case No. IT-98-33-A, Judgement, 25 February 2004], par 102.

[2] Appeal Brief [Prosecution’s Appeal from Trial Chamber’s Decision Pursuant to 98bis, 10 December 2003], par 16.

[3] See also the example given in Vasiljević Appeal, par 99.

[4] Prosecutor v Krnojelac, Appeals Judgment, Case IT-97-25-A, 17 September 2003, par 52.

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Notion(s) Filing Case
Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

According to the Appeals Chamber’s interpretation of the Trial Judgement, the Trial Chamber had found that to enter a conviction under the JCE doctrine, “in addition to the existence of a common purpose amounting to or involving the commission of a crime provided for in the Statute, an agreement between the accused and the principal perpetrator” has to be proven (para. 417). The Appeals Chamber rejected this additional requirement:

419. […] [T]he Appeals Chamber considers that the Trial Chamber erred in stating that, in order to hold the Accused criminally responsible for the crimes charged in the Indictment pursuant to the first category of JCE, the Prosecution must, inter alia, establish that between the person physically committing a crime and the Accused, there was an understanding or an agreement to commit that particular crime. Moreover, the Trial Chamber erred when it required that, in order to hold the Accused responsible pursuant to the third category of JCE, the Prosecution must prove that the Accused entered into an agreement with a person to commit a specific crime (in this case, the crimes of deportation and/or forcible transfer) and that this same person personally committed another crime, which was a natural and foreseeable consequence of the execution of the crime agreed upon.

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Notion(s) Filing Case
Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

The Trial Chamber had held that a conviction for a crime under the JCE doctrine requires that the person actually committing the actus reus of the crime (“principal perpetrator”) is a member of the same criminal enterprise. The Appeals Chamber reversed this finding and found:

410.    […] that what matters in a first category JCE is not whether the person who carried out the actus reus of a particular crime is a member of the JCE, but whether the crime in question forms part of the common purpose.[1] […]

411.    When the accused, or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.

[…]

413.    […] [T]he Appeals Chamber finds that, to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2]

[1] See infra, paras 418-419.

[2] The jurisprudence of the Tribunal traditionally equates a conviction for JCE with the mode of liability of “committing” under Article 7(1). The Appeals Chamber declines at this time to address whether this equating is still appropriate where the accused is convicted via JCE for crimes committed by a principal perpetrator who was not part of the JCE, but was used by a member of the JCE.

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Notion(s) Filing Case
JCE Decision - 21.05.2003 MILUTINOVIĆ et al.
(IT-99-37-AR72)

23.     […] Whilst conspiracy requires a showing that several individuals have agreed to commit a certain crime or set of crimes, a joint criminal enterprise requires, in addition to such a showing, that the parties to that agreement took action in furtherance of that agreement.[1]  In other words, while mere agreement is sufficient in the case of conspiracy, the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise. […]

[1]    XV Law Reports of Trials of War Criminals, pp 95 and 97.  According to the United Nations War Crimes Commission, “the difference between a charge of conspiracy and one of acting in pursuant of a common design is that the first would claim that an agreement to commit offences had been made while the second would allege not only the making of an agreement but the performance of acts pursuant to it.” (ibid, pp 97-98). 

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Notion(s) Filing Case
JCE Decision - 21.05.2003 MILUTINOVIĆ et al.
(IT-99-37-AR72)

25.     Joint criminal enterprise is different from membership of a criminal enterprise which was criminalised as a separate criminal offence in Nuremberg and in subsequent trials held under Control Council Law No 10.[1]  As pointed out by the United Nations War Crimes Commission, what was to be punished in relation to the latter was “no mere conspiracy to commit crimes but a knowing and voluntary membership of organisations which did in fact commit crimes, and those on a wide scale”.[2]  No such offence was included in the Tribunal’s Statute.  The Secretary-General made it clear that only natural persons (as opposed to juridical entities) were liable under the Tribunal’s Statute,[3] and that mere membership in a given criminal organization would not be sufficient to establish individual criminal responsibility:

The question arises, however, whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this Statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups.[4]

26.     Criminal liability pursuant to a joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.  […]

[1]    Article 10 of the Nuremberg Charter provided for this possibility: “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual [sic] to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.”  Article 6(1) of the Nuremberg Charter stated that “[t]he Tribunal . . . shall have the power to try and punish persons who, acting in the interest of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes” (emphasis added). Article II(1)(d) of Control Council Law No 10 provided that “1. Each of the following acts is recognized as a crime: […] (d) membership in categories of a criminal group or organization declared criminal by the International Military Tribunal”.

[2]    XV Law Reports of Trials of War Criminals, pp 98-99.

[3]    Par 50 of the Secretary-General’s Report.

[4]    Par 51 of the Secretary-General’s Report.

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Notion(s) Filing Case
Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

The Appeals Chamber affirmed that the application of the JCE doctrine is not limited to relatively small-scale cases, such as involving only one municipality.

425.    […] It is true that in several cases of the Tribunal, the mode of liability of JCE was applied to relatively small-sized cases. However, that depended, and the decisions in question did not state otherwise, on the size of the cases themselves and not on the existence of a legal requirement that JCE apply only to small-scale cases. In view of the foregoing, the Appeals Chamber agrees with the Prosecution that the Trial Chamber erred in concluding that the mode of liability of JCE is not appropriate for cases as large as the one at hand.

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Notion(s) Filing Case
Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

At the end of its discussion, the Appeals Chamber summarised the requirements for a conviction under the JCE doctrine. Apart from the requisite intent (para. 429), these requirements were enumerated as follows:

430.    […] A trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime (or, for convictions under the third category of JCE, the foreseeable crime) did in fact take place.[1] Where the principal perpetrator is not shown to belong to the JCE, the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the JCE (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise;[2] and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial,[3] it should at least be a significant contribution to the crimes for which the accused is to be found responsible.[4]

[1] See Tadić Appeal Judgement, para. 227.

[2] Stakić Appeal Judgement, para. 69.

[3] Kvočka et al. Appeal Judgement, paras 97-98.

[4] See supra, para. 427. Moreover, “[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.” Kvočka et al. Appeal Judgement, para. 97.

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

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.[1] […]

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.[2]

[1] Limaj et al. Appeal Judgement, para. 99; Brđanin Appeal Judgement, para. 430. See also Stakić Appeal Judgement, para. 69.

[2] As to the effect of this finding on Krajišnik’s convictions, see infra III.C.11.

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The Trial Chamber found that deportation, forcible transfer and persecution based thereon, were the original crimes of the common objective of the JCE 1. It further held that other, expanded crimes were added to the JCE, after leading members of the JCE became aware of them, accepted them and came to intend them. The Appeals Chamber was not satisfied, however, that the Trial Chamber found that Krajišnik incurred liability under JCE 3 for the first commissions of these expanded crimes.

167. The Appeals Chamber first notes that, in the Indictment, the Prosecution pled Krajišnik’s liability pursuant to JCE Category 1 and alternatively, pursuant to JCE Category 3.[1] However, the Appeals Chamber is not persuaded by the submission that the Trial Chamber found that Krajišnik incurred responsibility pursuant to JCE Category 3. First, although the Trial Chamber raised the question of whether Krajišnik incurred liability under JCE Category 3 for some of the crimes,[2] it never returned to answer that question. Instead, it focused its analysis on whether the expanded crimes became incorporated into the common objective,[3] thereby resulting in responsibility for Krajišnik under JCE Category 1 once they had been incorporated.[4] Had the Trial Chamber intended to find Krajišnik liable for the expanded crimes under JCE Category 3 before they had become part of the common objective, it would, at the very least, have made some distinction between the first commissions of the expanded crimes (when they were not yet part of the common objective) and their commission after they had become part of the common objective. However, the Trial Chamber made no such distinction. This indicates that the Trial Chamber found Krajišnik responsible under JCE Category 1 alone, and not under JCE Category 3.

168. Likewise, the other findings of the Trial Chamber invoked by the Prosecution do not reveal that it found Krajišnik criminally responsible under JCE Category 3. The Trial Chamber found that “even before the Bosnian-Serb take-overs began in April 1992, the Accused and Radovan Karadžić were aware that an armed conflict between the ethnic groups would have devastating consequences”.[5] This finding falls short, however, of demonstrating Krajišnik’s mens rea for JCE Category 3. Similarly, the Trial Chamber’s finding that “the Accused’s criminal responsibility arises with the attack and crimes committed in Bijeljina municipality in the beginning of April 1992”[6] does not show that the commission of expanded crimes was a natural and foreseeable consequence of the common objective. Its broad, summary finding in paragraph 1119 of the Trial Judgement that Krajišnik “had the mens rea required for the commission of the crimes which the Chamber, in part 5 of this judgement, has found were committed” does not address whether and when his liability arose under JCE Category 1 or JCE Category 3.[7] The preceding paragraphs 1110 to 1118 of the Trial Judgement do not clarify the matter, as they only generally describe how JCE members became aware of the commission of the expanded crimes “during the course of the indictment period”.[8] The Trial Chamber also found that “[t]ake-overs, killings, detention, abuse, expulsions, and appropriation and destruction of property […] were launched in early April 1992, and were repeated throughout the claimed territories in the months to come. This was the Bosnian-Serb leadership’s goal”.[9] However, this finding was made in the context of rejecting the Prosecution’s interpretation of the “Six Strategic Goals”,[10] and before the Trial Chamber had even reached the question of whether Krajišnik incurred liability pursuant to JCE Category 3.

169. Thus, having considered the Trial Judgement as a whole, the Appeals Chamber is not satisfied that the Trial Chamber made a finding that Krajišnik incurred criminal liability under JCE Category 3 for the first commissions of the expanded crimes, that is, before they became part of the common objective. Instead, the Trial Chamber only held Krajišnik responsible under JCE Category 1 for their subsequent commissions, that is, once they had become part of the JCE.

Furthermore, the Trial Chamber made insufficient findings as to when the expanded crimes became incorporated into the common objective. Hence, Krajišnik’s convictions for all expanded crimes were quashed.

171. The Appeals Chamber notes that in order to impute responsibility to leading JCE members, including Krajišnik, for the expanded crimes, the Trial Chamber was therefore required to make findings as to (1) whether leading members of the JCE were informed of the crimes, (2) whether they did nothing to prevent their recurrence and persisted in the implementation of this expansion of the common objective, and (3) when the expanded crimes became incorporated into the common objective. It is apparent that the Trial Chamber only made scarce findings in relation to each of these requirements.

172. The Appeals Chamber first notes that the Trial Judgement’s section on the common objective[11] offers only a few “illustrative” factual findings[12] on when “leading JCE members” – a term nowhere defined in the Trial Judgement[13] – became “aware” of the commission of expanded crimes.[14] Furthermore, the Trial Chamber did not make any findings in accordance with its prior statement that in order for expanded crimes to be included in the common objective, “leading JCE members” not only had to be informed of them but, additionally, took no effective measures to prevent their recurrence, and persist in the implementation of the common objective, thereby coming to intend these expanded crimes.

173. Even more significantly, while the Trial Chamber characterised “the common objective [of the JCE] as fluid in its criminal means”,[15] it did not explicitly find at which specific point in time the expanded crimes became part of the common plan and whether the JCE members had any intent in respect thereof. For instance, the Trial Chamber stated that the murder of civilians “was soon incorporated as an intended crime”,[16] that the Bosnian-Serb leadership “very soon came not only to accept killings […] but also to encourage them”,[17] and that the “appropriation of property […] had become a means of forcible ethnic recomposition”.[18] The Trial Chamber only generally found that these crimes “came to redefine the criminal means of the JCE’s common objective during the course of the indictment period.”[19] Similarly, in those instances where the Trial Chamber referred to a particular month in which leading JCE members became aware of the commission of expanded crimes, it did not specify the date when this happened or whether Krajišnik was among the leading JCE members who gained such awareness, let alone when leading JCE members went from being merely aware of the crime to intending it.

174. Furthermore, with respect to the “local component” of the JCE,[20] the Trial Chamber did not make any findings when members of this group became aware of the expanded crimes. Consequently, the Trial Chamber did not find at what point in time the expanded crimes became incorporated in the common objective through the involvement of the members of the local component of the JCE.

175. In light of these scarce – or entirely absent – findings, the Appeals Chamber is not able to conclude with the necessary preciseness how and at which point in time the common objective of the JCE expanded to include other crimes that originally were not included in it, and, consequently, on what basis the Trial Chamber imputed those expanded crimes to Krajišnik.

176. Neither the Appeals Chamber nor the Parties can be required to engage in speculation on the meaning of the Trial Chamber’s findings – or lack thereof – in relation to such a central element of Krajišnik’s individual criminal responsibility as the scope of the common objective of the JCE. Aside from merely stating that the common objective was “fluid”,[21] the Trial Chamber was required to precisely find how and when the scope of the common objective broadened in order to impute individual criminal responsibility to Krajišnik for those crimes that were not included in the original plan, i.e the expanded crimes.

177. In conclusion, the Appeals Chamber finds that the Trial Chamber committed a legal error[22] in failing to make the findings necessary for Krajišnik’s conviction in relation to the following expanded crimes, which were not included in the original common objective of the JCE.

[1] Indictment, para. 5.

[2] Trial Judgement, para. 1096.

[3] Trial Judgement, paras 1100-1117.

[4] Trial Judgement, para. 1098: “With acceptance of the actual commission of new types of crimes and continued contribution to the objective, comes intent, meaning that subsequent commission of such crimes by the JCE will give rise to liability under JCE form 1.” (emphasis added).

[5] Trial Judgement, para. 1099.

[6] Trial Judgement, para. 1124.

[7] Trial Judgement, para. 1119.

[8] Trial Judgement, para. 1118. For instance, the Trial Chamber found that JCE members became aware of extermination and killings in detention as late as August 1992 and November 1992, respectively (ibid., paras 1104 and 1109, respectively).

 

 

[11] Trial Judgement, paras 1089-1119.

[12] Trial Judgement, para. 1100 (fn. 2223).

[13] The Trial Chamber apparently did make a distinction between a “Pale-based leadership component” of the JCE (para. 1087) and a “local component” (para. 1088) but it is unclear whether the term “leading JCE members” (para. 1098) accords with either of these two groups.

[14] See e.g. paras 1108 (murder of civilians outside detention); 1109 (extermination), 1111 (plunder and appropriation of property), 1114 (destruction of cultural monuments and sacred sites).

[15] Trial Judgement, para. 1098.

[16] Trial Judgement, para. 1108 (emphasis added).

[17] Ibid.

[18] Trial Judgement, para. 1113 (emphasis added).

[19] Trial Judgement, para. 1118 (emphasis added).

[20] See Trial Judgement, para. 1088.

[21] Trial Judgement, para. 1098.

[22] As to the effect of this legal error, see infraIII.C.11.

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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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The Appeals Chamber considered the link between Krajišnik and other JCE members and the principal perpetrators of crimes who were not proven to be members of the JCE.

225. In the Brđanin Appeal Judgement, the Appeals Chamber held that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member – when using the principal perpetrators – acted in accordance with the common objective.[1] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[2]

226. The establishment of a link between the crime in question and a member of the JCE is a matter to be assessed on a case-by-case basis.[3] Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime. However, it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew of the existence of the JCE; what matters in JCE Category 1 is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose.[4]

235. The Appeals Chamber recalls its finding in Brđanin that all JCE members are responsible for a crime committed by a non-JCE member if it is shown that the crime can be imputed to at least one JCE member, and that this JCE member – when using the non-JCE member – acted in accordance with the common objective.[5]

236. At paragraphs 883(ii), 1082 and 1086 of the Trial Judgement, the Trial Chamber held that a JCE member could incur liability for crimes committed by other JCE members or by principal perpetrators “procured” by a JCE member to commit crimes which further the common objective. The Appeals Chamber is satisfied that this standard corresponds in substance to the standard outlined in the Brđanin Appeal Judgement which was rendered after the Trial Judgement in the present case.[6] Amicus Curiae therefore fails to show an error by the Trial Chamber in this respect.

The Appeals Chamber held, however, that the Trial Chamber, in relation to the majority of crimes, erroneously failed to make findings on the link between the principal perpetrators and the members of the JCE:

237. The Appeals Chamber will now analyse whether the Trial Chamber made the necessary factual findings establishing links between the principal perpetrators of the crimes and the JCE members identified above;[7] in other words, whether the JCE members used the principal perpetrators to commit crimes in furtherance of the common purpose in the sense that the crimes can be imputed to the JCE members.[8] At the outset, the Appeals Chamber observes that the Trial Chamber did not explicitly state that JCE members procured or used principal perpetrators to commit specific crimes in furtherance of the common purpose. The Appeals Chamber finds that, while the Trial Chamber should have made such a finding, this omission, in the circumstances of this case, does not as such invalidate the Trial Judgement,[9] because the Trial Chamber otherwise established a link between JCE members and principal perpetrators of crimes forming part of the common objective. However, in relation to a large number of principal perpetrators, the Trial Chamber did not reach any definite finding on their link with one of the JCE members. The Appeals Chamber will take this into account when reviewing the Trial Chamber’s findings. This analysis must be conducted on the basis of the Trial Judgement as a whole. […]

See also, paras 598 and 714.

[1] Brđanin Appeal Judgement, paras 413, 430. See also Martić Appeal Judgement, para. 168.

[2] Brđanin Appeal Judgement, para. 413. See also Limaj et al. Appeal Judgement, para. 120.

[3] Brđanin Appeal Judgement, para. 413. Martić Appeal Judgement, para. 169.

[4] Brđanin Appeal Judgement, para. 410.

[5] Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168.

[6] Ibid.

[7] Whether those findings withstand other challenges on appeal – in particular, whether they were open to a reasonable trier of fact – is left for later consideration as necessary.

[8] Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168.

[9] Cf. Martić Appeal Judgement, para. 181.

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655. In any event, the Appeals Chamber considers that JCE counsel advance no cogent reason[1] why it should depart from its holding that “the Statute provides, albeit not explicitly, for joint criminal enterprise as a form of criminal liability”.[2] First, they do not address the teleological interpretation of the Statute as applied by the Tribunal that extends jurisdiction over all those responsible for serious violations of international humanitarian law, including those who did not actually carry out the actus reus of the crimes, and that this may amount to “committing” under Article 7(1) of the Statute. Second, the fact that Articles 7(2) and 7(3) of the Statute apply to government officials and others who might be removed from the actual crime does not mean that these persons are exempted from other forms of liability under the Statute. Indeed, quite the contrary to JCE counsel’s claim, the Secretary-General’s Report explicitly called for individual criminal responsibility for “all persons who participate” in the planning, preparation or execution of crimes under the Statute.[3] As such, there is also no merit to JCE counsel’s argument that JCE “circumvents” Article 7(3) of the Statute. Finally, because JCE does not go beyond the Statute and forms part of custom as explained below, JCE counsel’s claim that the Judges “created” this form of liability fails.

659. The Appeals Chamber recalls that it provided a detailed reasoning for inferring the grounds for conviction in the WWII cases it cited in Tadić.[4] JCE counsel do not address this reasoning. The Appeals Chamber further recalls that both the Einsatzgruppen and Justice cases show that JCE apply to large-scale cases,[5] and that JCE is legally distinct from conspiracy and organisational liability.[6] JCE counsel address neither one of these holdings. Their further claim that the Tadić Appeals Chamber “molded” precedent to convict the accused is unsubstantiated. This sub-ground is dismissed.

662. The Appeals Chamber has consistently held that participation in a JCE is a form of “commission” under Article 7(1) of the Statute.[7] Although the facts of a given case might establish the accused’s liability under both JCE and other forms of liability under Article 7(1), the legal elements of JCE distinguish it from these other forms. In the first place, none of the other forms require a plurality of persons sharing a common criminal purpose. Moreover, whereas JCE requires that the accused intended to participate and contribute to such a purpose,[8] an accused may be found responsible for planning, instigating or ordering a crime if he intended that the crime be committed or acted with the awareness of the substantial likelihood that a crime would be committed.[9] In terms of actus reus, planning and instigating consists of acts “substantially contributing” to the perpetration of a certain specific crime[10] and ordering means “instructing” a person commit an offence.[11] By contrast, JCE requires that the accused contributes to the common purpose in a way that lends a significant contribution to the crimes.[12] The differences between JCE and aiding and abetting are well-established and need not be repeated here.[13] JCE counsel’s argument that JCE renders the other forms of liability under the Article 7(1) nugatory is thus without merit.

669. As a preliminary matter, the Appeals Chamber notes that Krajišnik did not challenge but, in fact, expressly recognised at trial that the fact that Tadić was rendered after his alleged acts took place does not lead to a conflict between JCE and the nullum crimen sine lege principle.[14] Therefore, as far as JCE counsel now argue that the Tadić Appeal Judgement violated that principle, Krajišnik may be deemed to have waived his right to bring this challenge on appeal.[15] In any event, JCE counsel fail to address the jurisprudence holding that the notion of JCE as established in Tadić does not violate the nullum crimen sine lege principle.[16]

670. Regarding JCE counsel’s challenge that the alleged “expansion” of JCE after Tadić violates the principle, which challenge Krajišnik did raise at trial,[17] the Appeals Chamber first recalls that when it interprets the JCE doctrine, it does not create new law. Instead, similarly to other provisions under the Statute, it merely identifies what the proper interpretation of that doctrine has always been, even though not previously expressed that way.[18] This does not contravene the nullum crimen sine lege principle, which

“does not prevent a court from interpreting and clarifying the elements of a particular crime.” Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.[19]

671. Turning to the present case, the Appeals Chamber notes that, although Tadić concerned a relatively low-level accused, the legal elements of JCE set out in that case remain the same in a case where JCE is applied to a high-level accused. Therefore, JCE counsel are wrong to speak about an “expansion” of JCE to cases such as the one of Krajišnik. Moreover, the Appeals Chamber considers that, while pronounced in relation to acts allegedly committed in 1999, its holding in the Ojdanić Decision on Joint Criminal Enterprise applies also to Krajišnik in this case:

Article 26 of the Criminal Law of the Federal Republic of Yugoslavia, coupled with the extensive state practice noted in Tadić, the many domestic jurisdictions which provide for such a form of liability under various names and which forms of liability run parallel to custom, and the egregious nature of the crimes charged would have provided notice to anyone that the acts committed by the accused […] would have engaged criminal responsibility on the basis of participation in a joint criminal enterprise.[20]

672. JCE counsel’s additional argument that the imposition of JCE liability is vulnerable to political influence is unsupported and dismissed. This sub-ground is dismissed.

See also Judge Shahabuddeen’s Separate Opinion annexed to the Appeals Judgement.

[1] Galić Appeal Judgement, para. 117; Aleksovski Appeal Judgement, para. 107.

[2] Ojdanić Decision on Joint Criminal Enterprise, para. 21. See also Tadić Appeal Judgement, paras 187-193.

[3] Tadić Appeal Judgement, para. 190, citing Secretary-General’s Report, para. 54.

[4] Tadić Appeal Judgement, paras 195-219; see more particularly paras 202-203, 208-209, 212-213.

[5] Brđanin Appeal Judgement, paras 422-423; Prosecutor v. André Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004 (“Rwamakuba Appeal Decision”), para. 25.

[6] Ojdanić Decision on Joint Criminal Enterprise, paras 23, 25-26.

[7] E.g. Kvoèka et al. Appeal Judgement, paras 79-80; Tadić Appeal Judgement, paras 188; Ojdanić Decision on Joint Criminal Enterprise, para. 20.

[8] Kvočka et al. Appeal Judgement, paras 82-83. In the case of JCE Catergory 3, it must also have been foreseeable to the accused that a crime other than the one agreed upon in the common objective might be perpetrated by a member of the JCE, or by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose, and the accused willingly took that risk by joining or continuing to participate in the enterprise.

[9] Nahimana et al. Appeal Judgement, paras 479-481; Kordić and Čerkez Appeal Judgement, paras 30-32.

[10] Kordić and Čerkez Appeal Judgement, paras 26-27.

[11] Kordić and Čerkez Appeal Judgement, para. 28.

[12] Brđanin Appeal Judgement, para. 430; Kvočka et al. Appeal Judgement, paras 96-97.

[13] Kvočka et al. Appeal Judgement, paras 89-90; Vasiljević Appeal Judgement, para. 102.

[14] Defence Final Trial Brief, para. 134, referencing Ojdanić Decision on Joint Criminal Enterprise, para. 8.

[15] See Blaškić Appeal Judgement, para. 222; Niyitegeka Appeal Judgement, para. 200; Akayesu Appeal Judgement, para. 361; Furundžija Appeal Judgement, para. 174.

[16] Stakić Appeal Judgement, para. 101; Ojdanić Decision on Joint Criminal Enterprise, para. 41.

[17] Defence Final Trial Brief, para. 134(b).

[18] See Kordić and Čerkez Appeal Judgement, para. 310; Aleksovski Appeal Judgement, para. 135.

[19] Ojdanić Decision on Joint Criminal Enterprise, para. 38 (footnotes omitted).

[20] Ojdanić Decision on Joint Criminal Enterprise, para. 43 (footnote omitted).

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697. […] The Appeals Chamber finds that the Trial Chamber did not hold that Krajišnik’s mere knowledge of crimes was sufficient to establish his mens rea. Instead, the Trial Chamber found that

[t]he information the Accused received during this period is an important element for the determination of his responsibility, because knowledge combined with continuing participation can be conclusive as to a person’s intent.[1]

JCE counsel fail to show that the Trial Chamber erred in this respect.

707. With regard to Krajišnik’s mens rea, the Appeals Chamber has already found that the Trial Chamber correctly required proof that “the JCE participants, including the accused, had a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out.”[2] Under this standard, there is no room to argue, as JCE counsel do,[3] that JCE liability can attach for mere adherence to a lawful objective. To the extent they claim that JCE liability requires an agreement, additional to the common purpose, between the JCE participants to commit the crimes,[4] this argument is erroneous in law.[5] The “bridge”, to use JCE counsel’s term,[6] between the JCE’s objective and Krajišnik’s criminal liability, as far as his mens rea is concerned, consisted of the shared intent that the crimes involved in the common objective be carried out. Such intent was both pleaded in the Indictment[7] and required by the Trial Chamber.[8] JCE counsel’s additional, bare assertion that the evidence regarding Krajišnik’s objective for Sarajevo is insufficient for criminal liability is dismissed.[9]

[1] Trial Judgement, para. 890 (emphasis added).

[2] Trial Judgement, para. 883(ii), referring to Tadić Appeal Judgement, para. 228. See supra III.C.9(b).

[3] Dershowitz Brief, paras 56-57.

[4] Dershowitz Brief, para. 57.

[5] Brđanin Appeal Judgement, para. 418. See Tadić Appeal Judgement, para. 227(ii). See also supraIII.C.5(b).

[6] Dershowitz Brief, para. 58.

[7] Indictment, para. 5.

[8] Trial Judgement, para. 883(ii).

[9] See e.g. Trial Judgement, paras 898, 1115-1116, 1119. 

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Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

249.     The Appeals Chamber recalls that, in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole.[1] Ngirabatware was charged with participation in a joint criminal enterprise with the common purpose to exterminate the Tutsis under Count 5 of the Indictment.[2] Count 6 of the Indictment charges Ngirabatware with rape as a natural and foreseeable consequence of the execution of the common purpose to exterminate the Tutsi civilian population.[3] Accordingly, despite the minor nuances in the language,[4] the nature of the common purpose under Count 5 of the Indictment is identical to that under Count 6. In fact, Count 5 and Count 6 are the only counts in the Indictment alleging that the common purpose of the joint criminal enterprise was the crime of extermination. A plain reading of the Indictment thus indicates that the common purpose of exterminating the Tutsi civilian population pleaded under Count 6 of the Indictment was linked to the charge of extermination contained in Count 5 of the Indictment. In these circumstances, the mention in the chapeau of Count 6 of the particulars concerning Ngirabatware’s participation in the joint criminal enterprise “as set forth above”[5] can be interpreted to refer solely to Ngirabatware’s alleged contribution to the joint criminal enterprise to commit extermination as set forth in Count 5 of the Indictment.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 182; Seromba Appeal Judgement, para. 27. The Appeals Chamber observes that the Trial Chamber was cognizant of the law in this regard: “In assessing an indictment, each paragraph should not be read in isolation but rather should be considered in the context of other paragraphs in the indictment”. The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Dismiss Based Upon Defects in Amended Indictment, 8 April 2009 (“Decision on Motion to Dismiss the Indictment”), para. 21, referring to Rutaganda Appeal Judgement, para. 304.

[2] Indictment [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Amended Indictment, 13 April 2009], pp. 12-13.

[3] Indictment, p. 15.

[4] Count 5 of the Indictment describes the common criminal purpose as “the extermination of the Tutsi” (Indictment, p. 12), whereas Count 6 of the Indictment describes the common criminal purpose as “the extermination of the Tutsi civilian population” (Indictment, p. 15).

[5] Indictment, p. 15.

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Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

71.     The Appeals Chamber notes that, although the French version of the Tadić Appeals Judgement faithfully reflects the meaning given by the Appeals Chamber to the term accomplice depending on the context, the same cannot be said of the French version of the Judgment under appeal. Thus, in paragraph 77 of the French version of the Judgment, even though footnote 230 specifies that an accomplice in a joint criminal enterprise is a person who shares the intent to carry out the enterprise and whose acts facilitate the commission of the agreed crime,[1] the term accomplice was translated by complice instead of coauteur in the body of the paragraph.

72.     The Appeals Chamber will now consider the question whether or not the Trial Chamber erred in its use of the terms accomplice and co-perpetrator, that is “coauteur”, with regard to the participants in a joint criminal enterprise other than the principal offender. The Appeals Chamber notes that, in so doing, the Trial Chamber used the terminology of the Tadić Appeals Judgement. The Trial Chamber noted in paragraph 77 of the Judgment under appeal that “for convenience […] the Trial Chamber will adopt the expression ‘co-perpetrator’ (as meaning a type of accomplice) when referring to a participant in a joint criminal enterprise who was not the principal offender.” Footnote 230 then clarifies that an accomplice in a joint criminal enterprise is a person who shares the intent to carry out the enterprise and whose acts facilitate the commission of the agreed crime. The Appeals Chamber holds that the Trial Chamber has not therefore erred in its use of the terms accomplice and co-perpetrator.

[1] Footnote 230 also refers to Furundžija Judgement, paras. 245 and 249 and Kupreškić Judgement, para. 772 and to Tadić Appeals Judgement, para. 229 and Furundžija Appeals Judgement, para. 118.

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Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

73.     The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in deciding that the notion of “commission” within the meaning of Article 7(1) of the Statute must be reserved for the principal perpetrator of the crime. Although it considered that “the seriousness of what is done by a participant in a joint criminal enterprise who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender,”[1] the Trial Chamber held that the term “committed” did not apply to a participant in a joint criminal enterprise who did not personally and physically commit the crime. On this point, the relevant passage of the Judgment is in paragraph 73 and reads as follows in the authoritative English version:

[…] The Prosecution has sought to relate the criminal liability of a participant in a joint criminal enterprise who did not physically commit the relevant crime to the word “committed” in Article 7(1), but this would seem to be inconsistent with the Appeals Chamber’s description of such criminal liability as a form of accomplice liability [footnote, referring to Tadić Appeals Judgement, para. 192] and with its definition of the word “committed” as “first and foremost the physical perpetration of a crime by the offender himself” [footnote, referring to Tadić Appeals Judgement, para. 188]. For convenience, the Trial Chamber proposes to refer to the person who physically committed the relevant crime as the “principal offender”.[2]

Unlike the Trial Chamber, the Appeals Chamber does not consider that the Prosecution’s submission is contrary to the Tadić Appeals Judgement. The Appeals Chamber notes that paragraph 188 of the Tadić Appeals Judgement, partially quoted by the Trial Chamber, reads as follows:

This provision [Article 7(1) of the Statute] covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose.

The Appeals Chamber accepts the Prosecution submission as justified and points out that it has since been upheld in the Ojdanić case. The Chamber views participation in a joint criminal enterprise as a form of “commission” under Article 7(1) of the Statute. For more detail on this point, the Appeals Chamber refers to the section of this Judgement on the applicable law.[4]

[1] Judgment [Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003], para. 75.

[2] Given the context, the French version of this extract from the Judgment incorrectly translated the term “accomplice liability” by “responsabilité du complice”. This version reads as follows: “L’Accusation a essayé de relier la responsabilité pénale d’un participant à l’entreprise criminelle commune qui n’a pas commis personnellement et matériellement le crime en question au terme ‘commis’ figurant à l’article 7 1) du Statut; cette approche semblerait toutefois en contradiction avec l’analyse de la Chambre d’appel, qui voit dans cette responsabilité une variante de la responsabilité du complice, ainsi qu’avec la définition du terme ‘commis’ (‘d’abord et avant tout la perpétration physique d’un crime par l’auteur lui-même’). Par commodité la Chambre de première instance se propose d’appeler ‘auteur principal’ la personne qui a matériellement commis le crime en question”.

[3] It should be noted that the authoritative English version uses the term “commission”.

[4] See paras. 28 to 32 of this Judgement. 

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

41. […] The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective.

42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.[1]

[1] See, e.g., Prosecutor v. Stanišić, Case No. IT-03-69-PT, Decision on Defence Preliminary Motions, 14 November 2003, p. 5; Prosecutor v. Meakić et al., Case No. IT-02-65-PT, Decision on Duško Kne‘ević’s Preliminary Motion on the Form of the Indictment, 4 April 2003, p. 6; Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Prosecution’s Motion for Leave To Amend the Consolidated Indictment, 4 March 2002, para. 13.

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

The Appeals Chamber affirmed that “an accused may be responsible for crimes committed beyond the common purpose of the systemic joint criminal enterprise, if they were a natural and foreseeable consequence thereof.” (para. 86). It then clarified the requirement that the crime be a natural and foreseeable consequence of the joint criminal enterprise: 

86. […] [I]t is to be emphasized that this question must be assessed in relation to the knowledge of a particular accused.  This is particularly important in relation to the systemic form of joint criminal enterprise, which may involve a large number of participants performing distant and distinct roles. What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise. A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him.     

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

89. The Appeals Chamber notes that in the Vasiljević Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.[1]

90. Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.

91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself.[2] Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.[3]

[1] Vasiljević Appeal Judgement para. 102; see also Tadić Appeal Judgement, para. 229; Krnojelac Appeal Judgement paras 31-33.

[2] Prosecutor v. Milutinović et al., Case No.: IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise, 21 May 2003, para. 20.

[3] Vasiljević Appeal Judgement, para. 102; Krnojelac Appeal Judgement, para. 75 (“[T]he acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent.”)

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

99. Appellant Kvočka appears to argue that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable.[1] The Appeals Chamber disagrees. A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadić Appeals Chamber explained, “[a]lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question.”[2] This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case.

[1] Kvočka Appeal Brief, para. 162 (“[T]he action has to be part of co-perpetration of some offense and also give its contribution to co-perpetration in the great extent”).

[2] Tadić Appeal Judgement para. 191; see also para. 192: “Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility”.

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

101. The Appeals Chamber affirms that the de facto or de jure position of employment within the camp is only one of the contextual factors to be considered by the Trial Chamber in determining whether an accused participated in the common purpose. A position of authority, however, may be relevant evidence for establishing the accused’s awareness of the system, his participation in enforcing or perpetuating the common criminal purpose of the system, and, eventually, for evaluating his level of participation for sentencing purposes.[1]

103. The Appeals Chamber notes that in assessing the level of contribution to a joint criminal enterprise which can be inferred from positions held in a camp, the Trial Chamber reviewed some of the post-World War II jurisprudence. Upon review, the Trial Chamber held that:

The concentration camp cases seemingly establish a rebuttable presumption that holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein. An intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp’s functioning.[2]

The Appeals Chamber finds that the Trial Chamber did not err in its discussion of these early cases. As it is clear that there is no requirement of “membership” in a group, beyond playing a role in a camp, in order to incur joint criminal enterprise responsibility, Appellant Prcać’s submission is rejected.

104. In another related argument, Appellant Radić submits that he should not be found guilty as a co-perpetrator since the Trial Chamber acquitted him of all charges based on superior responsibility.[3] The suggestion implicit in this argument is that a person lacking sufficient authority to be considered a superior would necessarily also lack sufficient authority to make a “significant contribution” to a systemic joint criminal enterprise. The Appeals Chamber notes that participation in a joint criminal enterprise pursuant to Article 7(1) of the Statute and superior responsibility pursuant to Article 7(3) of the Statute are distinct categories of individual criminal responsibility, each with specific legal requirements.[4] Joint criminal enterprise responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.[5] Moreover, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute for the same crime. Where the legal requirements of both forms of responsibility are met, a conviction should be entered on the basis of Article 7(1) only, and the superior position should be taken into account as an aggravating factor in sentencing.[6] Thus, Appellant Radić’s argument is dismissed.

[1] Krnojelac Appeal Judgement, para. 96.

[2] Trial Judgement, para. 278 (footnote omitted).

[3] Radić Reply Brief paras 52-53, 62-63.

[4] Blaskić Appeal Judgement, para. 91; see below, paras 144, 383.

[5] See above, para 97.

[6] See Blaskić Appeal Judgement, para. 91, referring to Čelebići Appeal Judgement, para. 745.

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

106. [The Appeals Chamber] notes that it has repeatedly confirmed the distinction between intent and motive:

The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadic appeal judgement the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law’.[1]

Shared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise.[2] Therefore, the Appellants’ argument in this regard is rejected.

[1] Jelesić Appeal Judgement, para. 49, referring to Tadić Appeal Judgement, para. 269; see also Krnojelac Appeal Judgement, para. 102.

[2] Krnojelac Appeal Judgement, para. 100. 

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

109. The Trial Chamber held that:

Where the crime requires special intent, such as the crime of persecution charged in count 1 of the Amended Indictment, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator. However, if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent. This shared knowledge too can be inferred from the circumstances. If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on “political, racial or religious grounds”. If the criminal enterprise entails killing members of a particular ethnic group, and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds. Thus, a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group.[1]

110. The Appeals Chamber affirms the Trial Chamber’s conclusion that participants in a basic or systemic form of joint criminal enterprise must be shown to share the required intent of the principal perpetrators. Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise.[2] If the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime. […].

[1] Trial Judgement, para. 288.

[2] Krnojelac Appeal Judgement, para. 111. 

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

112. The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved.[1] Nor is the participant in a joint criminal enterprise required to be physically present when and where the crime is being committed.[2]

113. While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence. […].

[1] See e.g. Tadić Appeal Judgement, para. 192.

[2] Krnojelac Appeal Judgement, para. 81.

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

117. The jurisprudence on this issue is clear. Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime. The common purpose need not be previously arranged or formulated; it may materialize extemporaneously.[1]

118. In the Krnojelac Appeal Judgement, the Appeals Chamber confirmed that the systemic form of joint criminal enterprise does not require proof of an agreement:

The Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadić case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers – the principal perpetrators of the crimes committed under the system – to commit those crimes.[2]

[1] Tadić Appeal Judgement, para. 227(ii). See also Vasiljević Appeal Judgement, para. 100.

[2] Krnojelac Appeal Judgement, para. 97.

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

182. The Appeals Chamber wishes to point out that, although commonly referred to as the “category known as        concentration camps”, the second category of joint criminal enterprise, known as systemic, covers all
       cases relating to an organised system with a common criminal purpose perpetrated against the detainees.
       This concept of criminal responsibility has been shaped by the case-law derived from concentration camp
       cases from the Second World War, but reference to the concentration camps is circumstantial and in no
       way limits the application of this mode of responsibility to those detention camps similar to concentration
       camps.[1]

[1] See also Krnojelac Appeal Judgement, para. 89.

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

262. In a joint criminal enterprise such as that conducted in Omarska camp, it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment. In this case it has to be proved that the death of the victim was the result of what happened in Omarska camp, be it inhumane conditions, beatings or ill-treatment. On this point, Kvočka rightly argues that the Trial Chamber must first establish the existence of the crime of murder. In this regard, the Appeals Chamber notes that the Trial Chamber did not provide a specific section for the murders committed in Omarska camp and for the specific responsibility of each of the accused for these murders. The Trial Chamber made, however, a number of findings throughout the Trial Judgement on the charges of murder alleged in the Indictment. The Appeals Chamber refers to its previous discussion in this respect[1] and recalls that such a generic approach does not invalidate the Trial Judgement. The Appeals Chamber dismisses Kvočka's contention that the Trial Chamber failed to evaluate the evidence in its ruling on the charges of murder.

263. In addition, contrary to Kvočka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose.[2] […]

[1] See above, paras 55-76.

[2] See Trial Judgement, para. 312. 

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

276.    […] the Appeals Chamber concurs with the finding of the Trial Chamber that a participant in a joint criminal enterprise would not need to know of each crime committed in order to be criminally liable.[1] Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently is enough in this regard. […]

[1] Trial Judgement, para. 312 and footnote 686.

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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

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.[1] 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.[2]

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”,[3] 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”.[4] 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.[5] 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”.[6] 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.[7] 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”.[8] 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”.[9] […]

[1] Trial Judgement, para. 511.

[2] Trial Judgement, para. 669 (emphasis added).

[3] Krnojelac Appeal Judgement, para. 116.

[4] Krnojelac Appeal Judgement, para. 116.

[5] Vasiljević Appeal Judgement, paras 130, 142.

[6] Krstić Appeal Judgement, para. 143.

[7] Stakić Appeal Judgement, para. 69.

[8] Brđanin Appeal Judgement, para. 430.

[9] Trial Judgement, para. 666.

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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

109. […] The mens rea of a systemic joint criminal enterprise requires proof of the participant’s personal knowledge of the system of ill-treatment, as well as the intent to further this system of ill-treatment.[1]

[1] Tadić Appeal Judgement, paras 202, 220, 228.

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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

110. […] While motive is not an element of the mens rea of a joint criminal enterprise, the existence ‑ and scope ‑ of a common plan is part of its actus reus. Hence, the targeting of these specific groups was part of the actus reus of the joint criminal enterprise charged in the Indictment.[1] […]

[1] Similarly, the Appeals Chamber held in Stakić that the “common purpose consisted of a discriminatory campaign to ethnically cleanse the Municipality of Prijedor by deporting and persecuting Bosnian Muslims and Bosnian Croats in order to establish Serbian control (‘Common Purpose’).” (Stakić Appeal Judgement, para. 73, emphasis added). Consequently, when examining Mr. Stakić’s intent to further the Common Purpose, the Appeals Chamber considered the Trial Chamber’s findings that Mr. Stakić was working together with other participants in the joint criminal enterprise “to implement the SDS-initiated plan to consolidate Serb authority and power within the municipality”, and that “[h]e was aware that he could frustrate the objective of achieving a Serbian municipality […]” (ibid., para. 82). Hence, the Common Purpose was not limited to the commission of statutory crimes, but also encompassed the goal that was to be achieved by the commission of these crimes, or, in other words, a motive.

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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

119. […] In general, in the case of a third category joint criminal enterprise, the crimes must be committed by members of the joint criminal enterprise.[1] […]

120. Furthermore, the Appeals Chamber finds that Haradin Bala, even if he were a member of a systemic joint criminal enterprise, could not be convicted for having used “outsiders” to commit crimes in the camp. In this context, the Appeals Chamber recalls its finding in Brđanin that

to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2]

The Appeals Chamber notes, however, that it was neither argued at trial nor on appeal whether Haradin Bala could incur systemic joint criminal enterprise liability for crimes committed by non-members of the enterprise. Furthermore, the Appeals Chamber recalls its finding in Brđanin that it would be unfair to enter new convictions in that case on the basis that principal perpetrators do not need to be members of the joint criminal enterprise, as this was not litigated at trial.[3] This reasoning also applies in the present case.

[1] See Tadić Appeal Judgement, para. 220.

[2] Brđanin Appeal Judgement, para. 413.

[3] Brđanin Appeal Judgement, para. 361.

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 161, the Appeals Chamber recalled its previous case-law in Ntakirutimana, based on the Krnojelac Appeal Judgement:

With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment--for instance in a pre-trial brief--the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.[1]

At para. 162, the Appeals Chamber then relied on the ICTY Appeals Chamber’s holding in Kvocka to find that “failure to plead a JCE theory, including the category of JCE and the material facts supporting the theory, constitutes a defect in the indictment” which can however be cured by the Prosecution’s subsequent submissions.[2] It then held:

163. The Appeals Chamber adopts the holding and rationale of the ICTY Appeals Chamber in Kvočka. The mode of liability under Article 6(1) (including the JCE theory) must be pleaded in the indictment, or the indictment is defective. As Krnojelac makes clear, however, such defects may be cured by the provision of timely, clear, and consistent information -- for example, in a pre-trial brief.[3] This approach is consistent with the Appeals Chamber’s approach to all other pleading failures.[4]

For example, while the words “joint criminal enterprise” need not be contained in the indictment, other wordings may be used:

165. The words “joint criminal enterprise” are not contained in the Indictment. This absence does not in and of itself indicate a defect. As the Appeals Chamber noted in Ntakirutimana, the Tadić Appeal Judgement used interchangeably the expressions “joint criminal enterprise”, “common purpose”, and “criminal enterprise”.[5] It is possible that other phrasings might effectively convey the same concept.[6] The question is not whether particular words have been used, but whether an accused has been meaningfully “informed of the nature of the charges” so as to be able to prepare an effective defence.[7]

In the present case, however, the Appeals Chamber noted that such language was not sufficient because other language in the indictment dispelled the clarity that language could have provided.  (paras 171-172).

[1] Krnojelac Appeal Judgement, para. 138. See also Ntakirutimana Appeal Judgement, para. 475.

[2] Kvočka et al. Appeal Judgement, paras 28, 42-54.

[3] Krnojelac Appeal Judgement, para. 138.

[4] See supra section II.B.2.

[5] Ntakirutimana Appeal Judgement, n. 783.

[6] See Ntakirutimana Appeal Judgement, n. 783.

[7] Ntakirutimana Appeal Judgement, para. 470. The Appeals Chamber notes, however, that because today ICTY and ICTR cases routinely employ the phrase “joint criminal enterprise”, that phrase should for the sake of maximum clarity preferably be included in future indictments where JCE is being charged.

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Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] […]

[1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24.

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Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

97. […] The Appeals Chamber recalls that liability for deviatory crimes attributed via the third category of JCE involves responsibility for crimes committed “beyond the common purpose, but which are nevertheless a natural and foreseeable consequence” of it.[1] Reversal of the Trial Chamber’s finding that a JCE existed means that other crimes could not be a natural and foreseeable consequence of that JCE’s common purpose. Accordingly, the Appellants’ convictions for deviatory crimes entered via the third form of that JCE must also fall.[2]

[1] Kvočka et al. Appeal Judgement, para. 83.

[2] See [Gotovina and Markač Appeal Judgement], paras 89-90. Judge Agius and Judge Pocar dissent on this paragraph.

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Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-A)

77. The Appeals Chamber recalls that the actus reus for the first and third categories of JCE liability consists of: (i) a plurality of persons; (ii) the existence of a common plan, design, or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (iii) the participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute.[1] The mens rea element for the first category of JCE liability is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).[2] For the third category, it is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the JCE or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case: (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group; and (ii) the accused willingly took that risk.[3]

[1] Tadić Appeal Judgement, para. 227. See also Stakić Appeal Judgement, para. 64; Brđanin Appeal Judgement, para. 364.

[2] Tadić Appeal Judgement, para. 228. See also Stakić Appeal Judgement, para. 65; Brđanin Appeal Judgement, para. 365; Krajišnik Appeal Judgement, paras 200-208, 707.

[3] Tadić Appeal Judgement, para. 228. See also Stakić Appeal Judgement, para. 65; Brđanin Appeal Judgement, paras 365, 411; [ainović et al. Appeal Judgement, para. 1557.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-A)

78. The Appeals Chamber further recalls that pursuant to Article 23(2) of the Statute and Rule 98ter(C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), trial chambers are required to give a reasoned opinion in writing.[1] In order to provide a reasoned opinion, a trial chamber should set out in a clear and articulate manner “the legal and factual findings on the basis of which it reached the decision to convict or acquit an individual”.[2] In particular, a trial chamber is required to make findings on those facts which are essential to the determination of guilt on a particular count.[3] The absence of any relevant legal findings in a trial judgement also constitutes a manifest failure to provide a reasoned opinion.[4] A reasoned opinion in the trial judgement is essential, inter alia, for allowing a meaningful exercise of the right of appeal by the parties and enabling the Appeals Chamber to understand and review the trial chamber’s findings as well as its evaluation of the evidence.[5]

79. The Trial Chamber found neither Stanišić nor Simatović responsible for committing the crimes charged in the Indictment pursuant to JCE liability, on the ground that it was unable to conclude beyond reasonable doubt that Stanišić or Simatović shared the intent to further the common criminal purpose of the JCE.[6] Before arriving at this conclusion on their mens rea, the Trial Chamber did not first adjudicate whether the elements of the actus reus of JCE liability – namely, the existence of a common criminal purpose, a plurality of persons, and Stanišić’s and Simatović’s contribution – were fulfilled.[7]

80. For the reasons set out below, the Appeals Chamber, Judge Afanđe dissenting, finds that, in so doing, the Trial Chamber erred in law by failing to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability.

81. The Appeals Chamber observes that the Trial Chamber found that there was no direct evidence establishing Stanišić’s and Simatović’s intent.[8] However, the Appeals Chamber recalls that the requisite intent for a conviction under JCE liability can be inferred from circumstantial evidence, such as a person’s knowledge of the common criminal purpose or the crime(s) it involves, combined with his or her continuing participation in the crimes or in the implementation of the common criminal purpose.[9] In the circumstances of the present case, the Appeals Chamber, Judge Afanđe dissenting, is of the view that the Trial Chamber could only adjudicate, and provide a reasoned opinion on, Stanišić’s and Simatović’s mens rea under JCE liability after having established the existence and scope of the common criminal purpose shared by a plurality of persons and having assessed whether Stanišić’s and Simatović’s acts contributed to this common criminal purpose.

82. In the view of the Appeals Chamber, Judge Afanđe dissenting, determining the existence and scope of a common criminal purpose shared by a plurality of persons (including its geographical and temporal limits) was a necessary prerequisite to determining whether the acts performed by Stanišić and Simatović (including those not directly involving the commission of a crime) were related, and contributed, to the perpetration of the common criminal purpose. The Trial Chamber was therefore required to examine whether Stanišić’s and Simatović’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanišić’s and Simatović’s words in the context of that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanišić’s and Simatović’s mens rea for JCE liability could be inferred from the circumstances.

[…]

87. In the absence of a thorough analysis and prior findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as on Stanišić’s and Simatović’s contribution to it, the Trial Chamber could not have properly adjudicated Stanišić’s and Simatović’s mens rea.

88. Accordingly, the Appeals Chamber, Judge Afanđe dissenting, finds that the Trial Chamber erroneously failed to make findings on the existence and scope of a common criminal purpose shared by a plurality of persons, prior to finding that the mens rea of Stanišić and Simatović for JCE liability was not met. In so doing, the Trial Chamber failed to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability. Without the circumstances provided by the findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as the assessment of Stanišić’s and Simatović’s words and acts in light of this purpose, the Trial Chamber could not have determined whether it was able to infer beyond reasonable doubt Stanišić’s and Simatović’s mens rea from these circumstances and whether it should ultimately convict or acquit them.

[1] Kvočka et al. Appeal Judgement, para. 23. See also Popović et al. Appeal Judgement, paras 1123, 1367, 1771; Hadžihasanović and Kubura Appeal Judgement, para. 13; Kunarac et al. Appeal Judgement, para. 41.

[2] Hadžihasanović and Kubura Appeal Judgement, para. 13; Bizimungu Appeal Judgement, para. 18. See also Popović et al. Appeal Judgement, para. 1906; Haradinaj et al. Appeal Judgement, paras 77, 128.

[3] Popović et al. Appeal Judgement, para. 1906, referring to Hadžihasanović and Kubura Appeal Judgement, para. 13.

[4] Cf. Bizimungu Appeal Judgement, para. 19.

[5] Bizimungu Appeal Judgement, para. 18, referring, inter alia, to Hadžihasanović and Kubura Appeal Judgement, para. 13. See also Popović et al. Appeal Judgement, paras 1367, 1771; Kunarac et al. Appeal Judgement, para. 41.

[6] Trial Judgement [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement, 30 May 2013], paras 2336, 2354, read together with Trial Judgement, paras 2362-2363. See also supra, paras 27, 61.

[7] Trial Judgement, paras 2305-2354. See also supra, para. 45.

[8] See Trial Judgement, paras 2317, 2354. See also supra, paras 55-56.

[9] See, e.g., Popović et al. Appeal Judgement, para. 1369; Đorđević Appeal Judgement, para. 512. See also, e.g., Krajišnik Appeal Judgement, paras 202, 697; Blagojević and Jokić Appeal Judgement, paras 272-273; Kvočka et al. Appeal Judgement, para. 243. Cf., e.g., Tolimir Appeal Judgement, paras 378, 380, 390-391, 396-397, 404-405, 413‑414; Popović et al. Appeal Judgement, paras 937, 942-1028, 1363, 1370-1397; Đorđević Appeal Judgement, para. 513; [ainović et al. Appeal Judgement, paras 995, 1004, 1048-1052, 1180, 1183, 1242, 1250, fn. 3862; Krajišnik Appeal Judgement, paras 200, 204.

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ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter(C)
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

193.    […] Thus, there is no requirement that the plan or purpose must be previously arranged or formulated. Accordingly, while the fact of “having met physically or on telephone to undertake a common operation” may be a relevant factor to be considered, it is not constitutive of the actus reuselement required for criminal responsibility pursuant to the common purpose doctrine. […]

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

150.     […] [T]he Appeals Chamber recalls that there is no requirement to specifically identify each of the persons involved in a joint criminal enterprise.[1]

[…]

605.   […] the Trial Chamber’s duty to identify the plurality of persons applies to the persons belonging to the joint criminal enterprise,[2] not necessarily to the principal perpetrators of the crime. In that regard, the Trial Chamber expressly found that the Interahamwe, soldiers, and others who carried out the vast majority of the rapes and sexual assaults were not members of the joint criminal enterprise to pursue the destruction of the Tutsi population in Rwanda.[3] The Appeals Chamber recalls that the decisive issue with regard to the principal perpetrators of the crimes is whether they were used by the accused or by any other member of the joint criminal enterprise in order to carry out the actus reus of the crimes forming part of the common purpose.[4]

[1] Gotovina and Markač Appeal Judgement, para. 89.

[2] See supra, para. 145.

[3] [Karemera and Ngirumpatse] Trial Judgement, para. 1487.

[4] Kvočka et al. Appeal Judgement, para. 168.

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

630.   The Appeals Chamber recalls that an individual’s high-ranking position, coupled with the open and notorious manner in which criminal acts unfold, can provide a sufficient basis for inferring knowledge of the crimes.[1] […]

[1] See, e.g., Ntabakuze Appeal Judgement, para. 253.

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

632.   […] The Appeals Chamber recalls that knowledge of crimes combined with continued participation in a joint criminal enterprise can be conclusive as to a person’s intent,[1] […]

[1] Krajišnik Appeal Judgement, para. 697.

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

153.   The Appeals Chamber also finds no merit in Ngirumpatse’s contention that the Trial Chamber failed to establish any connection between him and the various criminal acts or other participants in the joint criminal enterprise. In this respect, the Appeals Chamber notes that the Trial Chamber was not required to find that Ngirumpatse contributed to each criminal act, but rather that he made a significant contribution to the common purpose and that each of the crimes for which he was held responsible formed part of that purpose.[1] It is immaterial whether Ngirumpatse was out of the country while some of the criminal acts were perpetrated. A participant in a joint criminal enterprise is not required to be physically present when and where the crime is being committed.[2] […]

[1] Gotovina and Markač Appeal Judgement, para. 89; Brđanin Appeal Judgement, para. 418. The Appeals Chamber has previously held that responsibility for a joint criminal enterprise can in fact involve a “nation wide government-organized system of cruelty and injustice”. See The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004, para. 25. See also Brđanin Appeal Judgement, para. 423.

[2] See Kvočka et al. Appeal Judgement, para. 112.

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

623.   The Appeals Chamber recalls that convictions for deviatory crimes that are not part of the joint criminal enterprise’s common purpose are possible pursuant to the third or extended form of joint criminal enterprise. Convictions for such crimes require that the additional deviatory crimes were a “foreseeable” possible consequence of carrying out “the actus reus of the crimes forming part of the common purpose”, and that “the accused, with the awareness that such a [deviatory] crime was a possible consequence of the implementation of th₣eğ enterprise, decided to participate in that enterprise”.[1]

[…]

627.   The Appeals Chamber recalls that an accused can be held responsible for crimes beyond the common purpose of a joint criminal enterprise if they were a natural and foreseeable consequence thereof.[2] However, as recalled by the Appeals Chamber, what is natural and foreseeable to one person participating in a joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them.[3] Thus, participation in a joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise.[4]

[…]

629.   A trial chamber must be satisfied that the only reasonable inference is that the accused, through his knowledge and through the level of his involvement in the joint criminal enterprise would foresee that the extended crime would possibly be perpetrated.[5] […]

See also para. 564.

[1] Gotovina and Markač Appeal Judgement, para. 90; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009 (“Karadžić Appeal Decision of 25 June 2009”), paras. 15-18.

[2] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009, paras. 15, 16; Kvočka et al. Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 148-151. See also Appeal Decision of 12 April 2006, para. 17.

[3] Kvočka et al. Appeal Judgement, para. 86.

[4] Kvočka et al. Appeal Judgement, para. 86.

[5] Kvočka et al. Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 147-151. The Appeals Chamber further recalls that the third form of joint criminal enterprise mens rea standard does not require an understanding that a deviatory crime would probably be committed. It does, however, require that the possibility that a crime could be committed is sufficiently substantial as to be foreseeable to an accused. See Karadžić Appeal Decision of 25 June 2009, para. 15. See also Gotovina and Markač Appeal Judgement, para. 90.

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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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917. Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts to find that he possessed the requisite intent pursuant to the first category of joint criminal enterprise is based on a misunderstanding of the applicable law. The Trial Chamber was not required to establish that Župljanin intended the specific coercive acts by which the JCE I Crimes were to be achieved. The Appeals Chamber recalls that the Trial Chamber was required to find that Župljanin shared with the other members of the JCE the intent to commit the JCE I Crimes and the intent to participate in a common plan aimed at their commission.[1] Therefore, it was necessary for the Trial Chamber to find that Župljanin shared the intent for the JCE I Crimes, and especially that he intended to forcibly displace, permanently or otherwise, the victims across the relevant de facto or de jure border to another country (as in deportation) or within a relevant border (as in forcible transfer).[2] In the view of the Appeals Chamber, it is not required that members of the JCE agreed upon a particular form through which the forcible displacement of non‑Serbs was to be effectuated or that Župljanin intended specific acts of coercion causing the displacement of individuals, so long as it is established that Župljanin intended to forcibly displace the victims.

[1] Popović et al. Appeal Judgement, para. 1369. See Đorđević Appeal Judgement, para. 468; Brđanin Appeal Judgement, para. 365. It is noted that Župljanin does not contest this standard (see Župljanin Reply Brief [Stojan [Ž]]upljanin’s Reply to Prosecution’s response Brief, 11 November 2013 (confidential; public redacted version filed on 13 November 2013)]], para. 12).

[2] See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, paras 61, 105. See also Stakić Appeal Judgement, paras 278, 307, 317. In this regard, the Appeals Chamber notes that the Trial Chamber correctly recounted the mens rea required for the JCE I Crimes (see Trial Judgement, vol. 1, para. 61).

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958. The Appeals Chamber recalls that an accused can only be held responsible for crimes pursuant to the third category of joint criminal enterprise, when the elements of the first category of joint criminal enterprise have been satisfied.[1] Thus, the extended form of joint criminal enterprise attaches only where a trial chamber is satisfied that an accused already possessed the intent to participate in and further the common criminal purpose of a group.[2] The Appeals Chamber recalls further that the subjective element of the first category of joint criminal enterprise is that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and the intent to participate in a common plan aimed at their commission.[3] For liability pursuant to the third category of joint criminal enterprise, a trial chamber must be satisfied in addition that: (i) it was foreseeable to the accused that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by any other member of the joint criminal enterprise) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[4] […]

[…]

966. The Appeals Chamber understands Župljanin to argue that the Trial Chamber erred by convicting him pursuant to the third category of joint criminal enterprise for Župljanin’s JCE III Crimes because these crimes are more serious than the JCE I Crimes.[5] The Appeals Chamber, however, observes that this contention is essentially premised on his suggestion to depart from the existing jurisprudence on the basis of his misconstruction of the law. More specifically, Župljanin argues that the Appeals Chamber should depart from its jurisprudence and establish an additional requirement within the subjective element of the third category of joint criminal enterprise, namely that in cases involving “violent foreseeable crimes” the accused must have “intended recourse to violent means” to implement the joint criminal enterprise.[6] However, the Appeals Chamber is not persuaded by this contention for the following reasons. 

See also paras 967-976.

[1] See Blaškić Appeal Judgement, para. 33; Vasiljević Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 228.

[2] See e.g. Blaškić Appeal Judgement, para. 33, referring to Vasiljević Appeal Judgement, para. 101 (quoting Tadić Appeal Judgement, para. 228); Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 65; Kvoćka et al. Appeal Judgement, para. 83.

[3] Popović et al. Appeal Judgement, para. 1369. See Đorđević Appeal Judgement, para. 468.

[4] Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411.

[5] 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. 219.

[6] Župljanin Appeal Brief, paras 223, 225.

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998. […] Contrary to Župljanin’s argument,[1] the Trial Chamber was not required to establish whether it was foreseeable that a specific group would commit the specific crime, as long as it found that it was foreseeable to Župljanin that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by another member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose and he willingly took the risk that the crime might be committed by joining or continuing to participate in the JCE.[2]

[1] 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. 205.

[2] See Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411.

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597. With respect to Stanišić’s argument that the Tribunal’s case law gives rise to cogent reasons to depart from the Tribunal’s case law for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise, the Appeals Chamber considers that Stanišić conflates the mens rea requirement for the crime of persecutions with the subjective element of a mode of liability by which criminal responsibility may attach to an accused. It recalls that for a conviction for persecutions pursuant to the third category of joint criminal enterprise, it is sufficient that it was foreseeable to the accused that an act of persecutions could be committed and that it could be committed with discriminatory intent.[1] […]

[…]

599. With respect to Stanišić’s argument that customary international law does not permit convictions for specific intent crimes pursuant to the third category of joint criminal enterprise, the Appeals Chamber observes that in its analysis of customary international law in the Tadić case, it specifically considered the provisions of the Convention for the Suppression of Terrorist Bombings and the ICC Statute cited by Stanišić.[2] It found, on the basis on numerous sources from both civil and common law jurisdictions, including post‑World War II cases, that the third category of joint criminal enterprise has existed as a mode of liability in customary international law since at least 1992 and that it applies to all crimes.[3] While Stanišić asserts that the Convention for the Suppression of Terrorist Bombings, the ICC Statute, and the post‑World War II cases on which he relies do not expressly provide for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise or even the third category of joint criminal enterprise itself,[4] this does not undermine the Appeals Chamber’s analysis of customary international law and conclusion in the Tadić case, which has been consistently confirmed in the Tribunal’s subsequent jurisprudence.[5] In the Appeals Chamber’s view, Stanišić merely relies upon the absence of express support in the sources he identifies, without showing that they give rise to cogent reasons to depart from the Tribunal’s existing jurisprudence.

[1] Đorđević Appeal Judgement, para. 919; Brđanin Appeal Decision of 19 March 2004, para. 6. It must further be shown that the accused willingly took the risk that the crime might be committed (see supra [Stanišić and Župljanin Appeal Judgement]], para. 595).

[2] Tadić Appeal Judgement, paras 221‑223, referring to Convention for the Suppression of Terrorist Bombings [International Convention for the Suppression of Terrorist Bombing, U.N. Doc. A/RES/52/164; 37 ILM 249 (1998); 2149 UNTS 284, entered into force 23 May 2001]], art. 2(3)(c), ICC Statute [Statute of the International Criminal Court, adopted by a Diplomatic Conference in Rome on 17 July 1998]], art. 25(3). See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 355-363.

[3] Tadić Appeal Judgement, paras 194‑226. See Đorđević Appeal Judgement, para. 81; Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004 [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004]], paras 10, 17, referring to Tadić Appeal Judgement, paras 188, 193.

[4] See Stanišić Appeal Brief, paras 356-358, 361-366.

[5] Popović et al. Appeal Judgement, para. 1672, referring to Đorđević Appeal Judgement, para. 81; Martić Appeal Judgement, para. 80; Brđanin Appeal Judgement, para. 405. See Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004, paras 14-25. In this regard, the Appeals Chamber also recalls that “it is not required to demonstrate that every possible combination between crime and mode of liability be explicitly allowed by, or have precedents in, customary international law” (Đorđević Appeal Judgement, para. 81 (emphasis omitted)).

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