Liability for acts committed by non members of the JCE
|Rule 98bis Judgement - 11.07.2013||
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. 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. 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. 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. 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.
 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.
 Krajišnik Appeal Judgement, para. 225. See also Brđanin Appeal Judgement, paras 413, 430.
 Krajišnik Appeal Judgement, para. 225. See also Brđanin Appeal Judgement, para. 410.
 Krajišnik Appeal Judgement, para. 226. See also Brđanin Appeal Judgement, para. 410.