Mens rea

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

529. […] The Appeals Chamber recalls that the crimes of genocide and conspiracy to commit genocide both require genocidal intent as a part of the mens rea element[…] [1] […].

[1]  In order for the mens rea for conspiracy to commit genocide to be satisfied “the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea)”. Nahimana et al. Appeal Judgement, para. 894. Likewise, for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. Munyakazi Appeal Judgement, para. 141.

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Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

43. […] The Appeals Chamber recalls that for conduct to entail criminal liability it must be possible for the individual to determine ex ante, based on the facts available to him, that the act is criminal. Both Appellants knew that the information was given by a witness with protective measures in place. Thus, the Trial Chamber correctly held that the Appellants had the necessary mens rea.

44. The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. It is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.[1]

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-R77.4, Contempt Proceedings Against Kosta Bulatović – Decision on Contempt of the Tribunal, 13 May 2005, para. 17.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

26. The Appeals Chamber underscores that the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber.[1] Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent to disclose protected witness identities. […]

[1] Jović Appeal Judgement, para. 27. 

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

738. The Appeals Chamber reiterates that persecution as a crime against humanity does not require that the underlying acts are crimes under international law.[1] A trial chamber does not need to establish the elements of the underlying acts, including the mens rea, even when the underlying act also constitutes a crime under international law. With respect to the mens rea, all that is required is establishing that the underlying act was deliberately carried out with discriminatory intent. […]

[1]           Nahimana et al. Appeal Judgement, para. 985; Brđanin Appeal Judgement, para. 296; Kvočka et al. Appeal Judgement, para. 323.

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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
Reasons for Decision on Refusal to Order Joinder - 18.04.2002 MILOŠEVIĆ Slobodan
(IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73)

31. A person’s state of mind is no different to any other fact concerning that person which is not usually visible or audible to others. It may be established by way of inference from other facts in evidence. Where, as here, the state of mind to be established is an essential ingredient of the basis of criminal responsibility charged, the inference must be established beyond reasonable doubt. If there is any other inference reasonably open from the evidence which is consistent with the innocence of the accused, the required inference will not have been established to the necessary standard of proof. Any words of or conduct by the accused which point to or identify a particular state of mind on his part is relevant to the existence of that state of mind. It does not matter whether such words or conduct precede the time of the crime charged, or succeed it. Provided that such evidence has some probative value, the remoteness of those words or conduct to the time of the crime charged goes to the weight to be afforded to the evidence, not its admissibility. [...]

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

26. The Appellant […] contests the Trial Chamber’s finding that he possessed the requisite mens rea for genocide arguing that the Trial Chamber inferred his intent from his alleged presence at the crime sites alongside the assailants whose intent was to kill the Tutsi under a “spontaneous” JCE.[1] In his view, for the crime of genocide to occur, the intent to commit genocide must be formed prior to the commission of genocidal acts.[2] The Appeals Chamber finds no merit in this submission. The inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent. The Trial Chamber correctly considered whether the Appellant and the physical perpetrators possessed genocidal intent at the time of the massacres.[3] The Appellant’s argument on this point is therefore without merit.

[1] Simba Notice of Appeal, I-G-7; Simba Appeal Brief, para. 320.

[2] Simba Appeal Brief, paras 299, 320.

[3] Trial Judgement, paras 416, 418.

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Notion(s) Filing Case
Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

159. The Appeals Chamber considers that Šljivančanin misapprehends the mens rea standard applicable to aiding and abetting. The fact that an “omission must be directed to assist, encourage or lend moral support to the perpetration of a crime” forms part of the actus reus not the mens rea of aiding and abetting.[1] In addition, the Appeals Chamber has confirmed that “specific direction” is not an essential ingredient of the actus reus of aiding and abetting.[2] It reiterates its finding that the required mens rea for aiding and abetting by omission is that: (1) the aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator; and (2) he must be aware of the essential elements of the crime which was ultimately committed by the principal.[3] While it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed, if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter.[4] The Appeals Chamber further recalls that it has previously rejected an elevated mens rea requirement for aiding and abetting, namely, the proposition that the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.[5] Accordingly, Šljivančanin’s arguments are dismissed.  

[1] Orić Appeal Judgement, para. 43.

[2] Blagojević and Jokić Appeal Judgement, para. 189; see also Blagojević and Jokić Appeal Judgement para. 188.

[3] See supra para. 146.

[4] Simić Appeal Judgement, para. 86, citing Blaškić Appeal Judgement, para. 50. See also Nahimana et al. Appeal Judgement, para. 482; Ndindabahizi Appeal Judgement, para. 122; Furundžija Trial Judgement, para. 246.

[5] Blaškić Appeal Judgement, para. 49, citing Vasiljević Appeal Judgement, para. 102. See also Blagojević and Jokić Appeal Judgement, para. 222. 

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

270. The Appeals Chamber has previously ruled that the perpetrator of the crime of attack on civilians must undertake the attack “wilfully” and that the latter incorporates “wrongful intent, or recklessness, [but] not ‘mere negligence’”.[1] In other words, the mens rea requirement is met if it has been shown that the acts of violence which constitute this crime were wilfully directed against civilians, that is, either deliberately against them or through recklessness.[2] The Appeals Chamber considers that this definition encompasses both the notions of “direct intent” and “indirect intent” mentioned by the Trial Chamber, and referred to by Strugar, as the mens rea element of an attack against civilians.

271. As specified by the Trial Chamber in the Galić case,

For the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.[3]

The intent to target civilians can be proved through inferences from direct or circumstantial evidence.[4] There is no requirement of the intent to attack particular civilians; rather it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack.[5] The determination of whether civilians were targeted is a case-by-case analysis, based on a variety of factors, including the means and method used in the course of the attack, the distance between the victims and the source of fire, the ongoing combat activity at the time and location of the incident, the presence of military activities or facilities in the vicinity of the incident, the status of the victims as well as their appearance, and the nature of the crimes committed in the course of the attack.[6]

275. […] The Appeals Chamber, moreover, has held on various occasions that the absolute prohibition against attacking civilians “may not be derogated from because of military necessity”.[7] Furthermore, the Appeals Chamber recalls that, depending on the circumstances of the case, the indiscriminate character of an attack can be indicative of the fact that the attack was indeed directed against the civilian population.[8]

For application of this legal standard to the facts, see paras 272-276.

[1] Galić Appeal Judgement, para. 140, citing Galić Trial Judgement, para. 54.

[2] Cf. Commentary AP I, para. 3474 which defines the term “wilfully” in the following way: “the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them ('criminal intent’ or 'malice aforethought’); this encompasses the concepts of 'wrongful intent’ or 'recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.”

[3] Galić Trial Judgement, para. 55; see also Kordić and Čerkez Appeal Judgement, para. 48; Blaškić Appeal Judgement, para. 111.

[4] Galić Appeal Judgement, fn. 707.

[5] Ibid., fn. 709, citing Additional Protocol I, Article 52 (2).

[6] Galić Appeal Judgement, para. 132, citing Kunarac et al. Appeal Judgement, para. 91; Blaškić Appeal Judgement, para. 106; Galić Appeal Judgement, para. 133. Cf. Kordić and Čerkez Appeal Judgement, para. 438.

[7] Galić Appeal Judgement, para. 130 citing Blaškić Appeal Judgement, para. 109, and Kordić and Čerkez Appeal Judgement, para. 54. In this sense, the fighting on both sides affects the determination of what is an unlawful attack and what is acceptable collateral damage, but not the prohibition itself (Galić Appeal Judgement, fn. 704). It has also been held that even the presence of individual combatants within the population attacked does not necessarily change the legal qualification of this population as civilian in nature (Galić Appeal Judgement, para. 136).

[8] Galić Appeal Judgement, para. 132 and fn. 706. In that case, the Appeals Chamber upheld the Trial Chamber’s finding that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives were “tantamount to direct targeting of civilians” (Galić Trial Judgement, fn. 101). See also Galić Appeal Judgement, fn. 706: “Attacking anything that moves in a residential building, before determining whether the mover is a civilian or a combatant, is a paradigmatic example of not differentiating between targets.”

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

277. The crime of destruction or wilful damage of cultural property under Article 3(d) of the Statute is lex specialis with respect to the offence of unlawful attacks on civilian objects.[1] The mens rea requirement of this crime is therefore also met if the acts of destruction or damage were wilfully (i.e. either deliberately or through recklessness) directed against such “cultural property”.[2]

[1] Kordić and Čerkez Appeal Judgement, paras 89-91; Kordić and Čerkez Trial Judgement, para. 361.

[2] See Hadžihasanović and Kubura Trial Judgement, para. 59; Krajišnik Trial Judgement, para. 782; Naletilić and Martinović Trial Judgement, paras 603-605, citing Kordić and Čerkez Trial Judgement, para. 358 and Blaškić Trial Judgement, para. 185.

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ICTY Statute Article 3(d)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.

142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians.

[1] Trial Judgement, paras. 493, 504, 506.

[2] Trial Judgement, para. 493.

[3] Trial Judgement, para. 506.

[4] Trial Judgement, paras. 503, 504.

[5] Trial Judgement, paras. 380, 423, 491, 496, 500, 507.

[6] See, e.g., Rukundo Appeal Judgement, para. 61; Nahimana et al. Appeal Judgement, para. 524; Seromba Appeal Judgement, paras. 176, 177.

[7] Simba Appeal Judgement, paras. 262, 266.

[8] Simba Appeal Judgement, para. 266.

[9] See Trial Judgement, paras. 499, 500.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.

142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians.

[1] Trial Judgement, paras. 493, 504, 506.

[2] Trial Judgement, para. 493.

[3] Trial Judgement, para. 506.

[4] Trial Judgement, paras. 503, 504.

[5] Trial Judgement, paras. 380, 423, 491, 496, 500, 507.

[6] See, e.g., Rukundo Appeal Judgement, para. 61; Nahimana et al. Appeal Judgement, para. 524; Seromba Appeal Judgement, paras. 176, 177.

[7] Simba Appeal Judgement, paras. 262, 266.

[8] Simba Appeal Judgement, para. 266.

[9] See Trial Judgement, paras. 499, 500.

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Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

58. The Appeals Chamber considers it firmly established that, to satisfy the mens rea requirement for aiding and abetting, “[i]t must be shown that the aider and abettor knew that his own acts assisted the commission of that specific crime by the principal” (for example, murder, extermination, rape, torture)[1] and that the aider and abettor was “aware of the essential elements of the crime which was ultimately committed by the principal”.[2] Where the mens rea of the principal perpetrator is an element of the principal crime, the aider and abettor need not share the intent of the principal perpetrator,[3] but he or she must be aware of the intent of the principal perpetrator.[4] Mens rea can be established if the aider and abettor is not certain which of a number of crimes will ultimately be committed.[5] In this regard, where an accused “is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”[6] Accordingly, the Trial Chamber correctly set out the legal standard for the mens rea of aiding and abetting.[7]

Judge Patrick Robinson appended a Partially Dissenting Opinion to the Appeals Judgement on the issue of the Trial Chamber’s discretion and the assessment of a fair and expeditious trial.

[1] Aleksovski Appeal Judgement, para. 163 (citing Tadić Appeal Judgement, para. 229); see also Blaškić Appeal Judgement, para. 45 (citing Vasiljević Appeal Judgement, para. 102); Krnojelac Appeal Judgement, para. 51.

[2] Orić Appeal Judgement, para. 43 (citing Simić Appeal Judgement, para. 86); Aleksovski Appeal Judgement, para. 162.

[3] Krstić Appeal Judgement, para. 140; Krnojelac Appeal Judgement, paras 51-52; Simić Appeal Judgement, para. 86.

[4] Simić Appeal Judgement, para. 86; Brđanin Appeal Judgement, para. 487; Blagojević and Jokić Appeal Judgement, para. 127; Krstić Appeal Judgment, paras 140-141.

[5] Blaškić Appeal Judgement, para. 50 (citing Blaškić Trial Judgement, para. 287); Simić Appeal Judgement, para. 86.

[6] Blaškić Appeal Judgement, para. 50 (citing Blaškić Trial Judgement, para. 287); Simić Appeal Judgement, para. 86.

[7] See Trial Judgement, para. 145.

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

524. As recalled by the Appeals Chamber of ICTY in Jelisic, the Statute[1] defines the specific intent required for the crime of genocide as “the intent to accomplish certain specific types of destruction”[2] against a targeted group. Pursuant to the Statute, therefore, specific intent implies that the perpetrator seeks to destroy, in whole or in part, a national, ethnic, racial or religious group as such, by means of the acts enumerated under Article 2 of the said Statute.[3] In order to prove specific intent, it must be established that the enumerated acts were directed against a group referred to under Article 2 of the Statute and committed with the intent to destroy, in whole or in part, the said group as such.

525. The crime of genocide sometimes implies several offenders participating in the commission of the crime. The Appeals Chamber concurs with the Appellant that in order to find a person guilty of genocide, it must be established that such a person was personally possessed of the specific intent to commit the crime at the time he did so. Nonetheless, as stated by the Appeals Chamber in Kayishema/Ruzindana, “explicit manifestations of criminal intent are […] often rare in the context of criminal trials”.[4] In the absence of explicit, direct proof, the dolus specialis may therefore be inferred from relevant facts and circumstances.[5] Such an approach prevents perpetrators from escaping convictions simply because such manifestations are absent.[6] The validity of this interpretation was confirmed by the Appeals Chambers of both ad hoc Tribunals.[7] With respect to the facts and circumstances from which specific intent may be inferred, the ICTY Appeals Chamber in Jelisic stated that such facts are, inter alia:

[…] 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 of a particular group, or the repetition of destructive and discriminatory acts.[8] (Emphasis added)

The ICTY Appeals Chamber also indicated that the existence of a plan or policy is not “a legal ingredient” of the crime of genocide,[9] but that proving the existence of such a plan or policy may facilitate proof of the crime.[10] Moreover, the Kayishema/Ruzindana Appeal Judgement reveals that making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing dolus specialis.[11] The Appeals Chamber holds the view that establishing such a fact may, nonetheless, facilitate proof of specific intent.

528. […] The Appeals Chambers of the International Tribunal and the ICTY also confirmed that in the absence of explicit, direct evidence, specific intent may be inferred from other facts, such as the general context and the perpetration of other acts systematically directed against a given group. Such an approach does not imply that the guilt of an accused may be inferred only from his affiliation with “a guilty organisation.”

[1] Article 4(2) of the ICTY Statute corresponds to Article 2(2) of the ICTR Statute.

[2] Jelisic Appeal Judgement, para. 45: “The intent to accomplish certain specified types of destruction”.

[3] Ibid., para. 46.

[4] Kayishema/Ruzindana Appeal Judgement, para. 159.

[5] Kayishema/Ruzindana Appeal Judgement, para. 159; Jelisic Appeal Judgement, para. 47.

[6] Kayishema/Ruzindana Appeal Judgement., para. 159.

[7] Jelisic and Kayishema/Ruzindana, respectively.

[8] Jelisic Appeal Judgement, para. 47.

[9] Ibid, para. 48.

[10] Ibid., para. 48.

[11] Kayishema/Ruzindana Appeal Judgement, para. 160.

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Notion(s) Filing Case
Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

98. The Appeals Chamber considers that, in order to convict Hartmann, the Trial Chamber had to conclude that publishing the confidential information in the Book and Article in violation of a court order was done “knowingly and wilfully”.[1] The Trial Chamber convicted Hartmann in part based upon its finding that “the Chamber is satisfied beyond reasonable doubt that the Accused had knowledge at the time of publication of her Book and the Article that her disclosure was in violation of an order of the Tribunal”.[2] The Appeals Chamber is of the view the Trial Chamber, having made this finding, was under no obligation to also make a finding on whether Hartmann’s actions were “more than negligent”. In the present case, the only criterion that the Trial Chamber had to explicitly consider to establish contempt under Rule 77 of the Rules was whether Hartmann knowingly and wilfully interfered with the Tribunal’s administration of justice.

127. The Appeals Chamber recalls that it is settled jurisprudence that “the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber. Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent”.[3] Insofar as Hartmann contends that the Nobilo Appeal Judgement set out a different standard,[4] she is mistaken; any ambiguity in its analysis of the mens rea required to enter a conviction for contempt has been definitively addressed by later Appeals Chamber judgements.[5]

128. The Trial Chamber set out the mens rea required to enter a conviction for contempt under Rule 77(A)(ii) of the Rules as follows:

The mens rea required [....] is the disclosure of particular information in knowing violation of a Chamber’s order. Generally, it is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[6]

The Appeals Chamber considers that the Trial Chamber’s analysis of the mens rea required to enter a conviction for contempt was consistent with Appeals Chamber precedent. It correctly found that this precedent does not require the Prosecution to prove specific intent to interfere with the administration of justice in order to secure a conviction under Rule 77(A)(ii) of the Rules.

[1] See Rule 77(A) of the Rules. See also Nshogoza Appeal Judgement, paras 56-57 (“No additional proof of harm to the Tribunal’s administration of justice is required. The Appeals Chamber is not convinced that the defiance of a Chamber’s order conveys any different connotation than a knowing and wilful violation of one. Considerations of the gravity of an accused’s conduct or his underlying motivations are rather to be assessed in connection with the decision to initiate proceedings or in sentencing. Bearing this in mind, the Appeals Chamber considers that the various statements by Trial Chambers, cited by Nshogoza, which take into account the minimal gravity surrounding a violation of a Chamber’s order should be understood, not as a finding that the conduct was not contempt, but as an exercise of the discretion of the Chamber not to initiate proceedings in such circumstances. The fact that other persons might also have engaged in similar conduct is not a defence.”) (internal citations omitted).

[2] Trial Judgement, para. 62.

[3] [ešelj Contempt Appeal Judgement [In the Case Against Vojislav [ešelj, Case No. IT-03-67-R77.2-A, Judgement, 19 May 2010], para. 26 (internal citations omitted). See also Jović Contempt Appeal Judgement [Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007], para. 27.

[4] See Hartmann Final Appeal Brief [Florence Hartmann’s Appellant Brief, 12 October 2009], para. 84. See also Nobilo Appeal Judgement [Prosecutor Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001], paras 40-41.

[5] See, e.g., [ešelj Contempt Appeal Judgement [In the Case Against Vojislav [ešelj, Case No. IT-03-67-R77.2-A, Judgement, 19 May 2010], para. 26; Jović Contempt Appeal Judgement [Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007], para. 27. See also Nobilo Appeal Judgement[Prosecutor Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001], paras 40, 41, 53, and 54. 

[6] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 22 (internal citations omitted).

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ICTR Statute Article 19(4) ICTY Statute Article 20(4) ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

347. With respect to mens rea, the Appeals Chamber recalls that the indictment may either (i) plead the state of mind of the accused, in which case the facts by which that matter is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred.[1]

[1] Blaškić Appeal Judgement, para. 219.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

481. With respect to ordering, a person in a position of authority[1] may incur responsibility for ordering another person to commit an offence,[2] if the person who received the order actually proceeds to commit the offence subsequently. Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.[3]

[1] It is not necessary to demonstrate the existence of an official relationship of subordination between the accused and the perpetrator of the crime: Galić Appeal Judgement, para. 176; Gacumbitsi Appeal Judgement, para. 182; Kamuhanda Appeal Judgement, para. 75; Semanza Appeal Judgement, para. 361; Kordić and Čerkez Appeal Judgement, para. 28.

[2] Galić Appeal Judgement, para. 176; Ntagerura et al. Appeal Judgement, para. 365; Kordić and Čerkez Appeal Judgement, paras. 28-29.

[3] Galić Appeal Judgement, paras. 152 and 157; Kordić and Čerkez Appeal Judgement, para. 30; Blaškić Appeal Judgement, para. 42.

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Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

In paragraphs 281–305 the Appeals Chamber considered the submission of the Prosecution that the Trial Chamber erred in finding that all crimes against humanity enumerated under Article 5 require a discriminatory intent. It considered the text of Article 5 (paras. 282–286), relevant customary international law (paras. 287–292), the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)[1] (paras. 293–297) and statements made by France, the United States and the Russian Federation in the Security Council (paras. 298–304). It concluded as follows:

305. The Prosecution was correct in submitting that the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h), concerning various types of persecution.

[1]  U.N. Doc. S/25704, 3 May 1993.

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ICTR Statute Article 3 ICTY Statute Article 5
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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 - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

45. […] The Appeals Chamber will use the term “specific intent” to describe the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[1]

47. As to proof of specific intent, it may, in the absence of direct explicit evidence, 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 of a particular group, or the repetition of destructive and discriminatory acts.

48. The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime.  However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases.  The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime.[2]

49. 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 Tadić appeal judgement the Appeals Chamber stressed the irrelevance and “inscrutability of motives in criminal law”.[3]

[1]  The Appeals Chamber does not attribute to this term any meaning it might carry in a national jurisdiction.

[2] This was also held in the oral decision by the Appeals Chamber for the ICTR in Obed Ruzindana and Clément Kayishema v. Prosecutor, Case No.: ICTR-95-1-A, 1 June 2001.

[3] Prosecutor v. Duško Tadić, Case No.: IT-95-1-A, Judgement, 15 July 1999 (“the Tadić appeal judgement”), para. 269, p. 120.

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Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

31. Turning to the mens rea of contempt under Rule 77(A)(i) of the Rules, the Appeals Chamber notes that there has been considerable discussion in the jurisprudence as to the meaning of the word “contumacious” and whether it adds an extra element to the mens rea of the offence beyond the chapeau element of Rule 77(A) of “knowingly and wilfully interfer[ing] with [the] administration of justice”. As discussed above, the Appeals Chamber considers that “contumaciously” falls within the actus reus of the offence and therefore does not create an additional element of the mens rea. Accordingly, the Appeals Chamber finds that the Trial Chamber was correct in holding that the mens rea of contempt under Rule 77(A)(i) is knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify.

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Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

136. […] The Appeals Chamber recalls that, with respect to mens rea, an indictment may plead either (1) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (2) the evidentiary facts from which the state of mind is to be inferred.[1]

137. In the instant case, the Indictment pleaded that the Appellant had “the intent to destroy, in whole or in part, an ethnic or racial group as such”,[2] thus providing sufficient notice to the Appellant of the allegation that he possessed the specific intent to commit genocide. The Indictment therefore did not have to plead that the Appellant participated in recruiting young Hutu men for militia training as Impuzamugambi.

[1] Nahimana et al. Appeal Judgement, para. 347. See also Blaškić Appeal Judgement, para. 219.

[2] Indictment [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T, Second Revised Amended Indictment (In conformity with Trial Chamber III Decision dated 7 December 2006), filed 11 December 2006], para. 19.

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Contempt Appeal Judgement - 15.03.2007 JOVIĆ Josip
(IT-95-14 & 14/2-R77-A)

27. […] The mens rea that attaches to contempt under Rule 77(ii) requires only knowledge of the facts that make the conduct of the accused illegal; that is, knowledge that the disclosure was in violation of an order of the Chamber. It is not a valid defence that one did not know that disclosure of the protected information in violation of an order of a Chamber was unlawful. As the Appeals Chamber has previously stated, where a person is subject to the International Tribunal’s authority, that person must abide by its orders “regardless of his personal view of the legality of those orders”.[1] Likewise, an accused may not raise a mistake of law as a defence to his knowing breach of an order of the International Tribunal on the ground that the mistake was founded on legal advice.

 

[1] The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeal on Kosta Bulatović Contempt Proceedings, 29 August 2005, para. 11 (“Bulatović Interlocutory Appeal Decision”).

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Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

61. The Appeals Chamber recalls that the mens rea for instigating is established where the perpetrator acts with either direct intent to prompt another to commit a crime, or with awareness of the substantial likelihood that a crime will be committed in execution of that instigation.[1] Furthermore, where the crime alleged is genocide, it must also be proven that the perpetrator acted with the specific intent to destroy a protected group as such in whole or in part.[2]

[1] Kordić and Čerkez Appeal Judgement, paras. 29, 32.

[2] Seromba Appeal Judgement, para. 175.

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Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

53. The words “as such,” [in Article 2(2) of the ICTR Statute] however, constitute an important element of genocide, the “crime of crimes.”[1] It was deliberately included by the authors of the Genocide Convention in order to reconcile the two diverging approaches in favour of and against including a motivational component as an additional element of the crime. The term “as such” has the effet utile of drawing a clear distinction between mass murder and crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion.[2] In other words, the term “as such” clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting “as such” to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership.

See also paragraphs 49–52.

[1] Prosecutor v. Kambanda, ICTR-97-23-S, Judgement and Sentence, 4 September 1998, para. 16; Prosecutor v. Jelisić, IT-95-10-A, Judgement, 14 December 1999, Partial Dissenting Opinion of Judge Wald, para. 2.

[2] See William A. Schabas, Genozid im Völkerrecht (2003), pp. 340-341; William A. Schabas, Genocide in International Law (2000), pp. 254-255.

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Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

43. The prosecution’s submission that wilful blindness as to the existence of the order is sufficient is based upon the common law’s acceptance of such a state of mind (also called deliberate ignorance) as being equally culpable as actual knowledge of the particular fact in question in certain areas of the criminal law. […] Proof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist).  In some cases, it has been suggested that such a state of mind is capable of giving rise to the inference of actual knowledge, but in most cases it is merely said to be sufficient to prove knowledge.

44. It is, of course, important to emphasise that common sense propositions of fact are not transformed into propositions of law. It can never be said that a requirement of actual knowledge may be established by anything less than actual knowledge.  But the acceptance in certain areas of the law of wilful blindness as establishing knowledge is of some assistance in determining whether, in any particular case, a “knowing” violation implies a requirement of actual knowledge of what has been violated. What must be identified in the present context is the type of conduct which can properly be described as “knowing and wilful”, which interferes with the Tribunal’s administration of justice and which is appropriately dealt with as contempt, with its liability for imprisonment or a substantial fine.

45. Mere negligence in failing to ascertain whether an order had been made granting protective measures to a particular witness could never amount to such conduct.  It is unnecessary in this appeal to determine whether any greater degree of negligence could constitute contempt. Negligent conduct could be dealt with sufficiently, and more appropriately, by way of disciplinary action, but it could never justify imprisonment or a substantial fine even though the unintended consequence of such negligence was an interference with the Tribunal’s administration of justice.  At the other end of the spectrum, wilful blindness to the existence of the order in the sense defined is, in the opinion of the Appeals Chamber, sufficiently culpable conduct to be more appropriately dealt with as contempt. Whether other states of mind, such as reckless indifference to the existence of the order, constitute contempt by a knowing violation of the order can be left to the cases in which they arise for determination.

54. In most cases where it has been established that the alleged contemnor had knowledge of the existence of the order (either actual knowledge or a wilful blindness of its existence), a finding that he intended to violate it would almost necessarily follow.  There may, however, be cases where such an alleged contemnor acted with reckless indifference as to whether his act was in violation of the order.[1]  In the opinion of the Appeals Chamber, such conduct is sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order.  The Appeals Chamber agrees with the prosecution that it is sufficient to establish that the act which constituted the violation was deliberate and not accidental. […]

[1]    This is a reckless indifference to the consequences of the act by which the order is violated, rather than a reckless indifference to the existence of the violated order to which reference was made in par 45, supra.

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

1772. It is firmly established in the jurisprudence of the Tribunal that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator.[1] In addition, the Appeals Chamber recalls that it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed – if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.[2]

1773. The Appeals Chamber has previously defined “specific crime” as referring to, for example, “murder, extermination, rape, torture, wanton destruction of civilian property, etc.”[3] There is no legal requirement that the aider and abettor know every detail of the crime that was eventually committed. Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided.

[1] Haradinaj et al. Appeal Judgement, para. 58, referring to, inter alia, Aleksovski Appeal Judgement, para. 163, Orić Appeal Judgement, para. 43, Simić Appeal Judgement, para. 86.

[2] Haradinaj et al. Appeal Judgement, para. 58; Blaškić Appeal Judgement, para. 50.

[3] Tadić Appeal Judgement, para. 229(iii); Vasiljević Appeal Judgement, para. 102(i).

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

270.   The Appeals Chamber recalls that the Kunarac et al. Appeal Judgement endorsed the holding of the trial chamber in that case that the accused must have known of the attack against the civilian population and that his acts comprised part of the attack, or at least must have taken the risk that his acts were part thereof.[1] Subsequently, in Blaškić the Appeals Chamber held that what is required is “knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof”.[2]

271.   The dispute between the parties in the present case revolves around the question of whether the Blaškić Appeal Judgement rescinded the ruling in Kunarac et al. with regard to the mens rea chapeau requirement of Article 5 of the Statute. When analysed in the context of the other relevant considerations in the Blaškić Appeal Judgement, it becomes evident that the Appeals Chamber did not intend to depart from its previous holding in Kunarac et al. This is illustrated by the fact that in defining the mens rea of crimes against humanity, the Blaškić Appeal Judgement explicitly referred to paragraph 102 of the Kunarac et al. Appeal Judgement, which in turn cites with approval the mens rea standard adopted by the trial chamber in that case.[3] Such interpretation is further supported by the Appeals Chamber’s subsequent jurisprudence adhering to the “taking the risk” standard endorsed in the Kunarac et al. Appeal Judgement.[4] […]

[1] Kunarac et al. Appeal Judgement, para. 102, citing Kunarac et al. Trial Judgement, para. 434.

[2] Blaškić Appeal Judgement, para. 126, referring to Tadić Appeal Judgement, para. 248; Kunarac et al. Appeal Judgement, paras 99, 103.

[3] Blaškić Appeal Judgement, para. 124, fn. 248, referring, inter alia, to Kunarac et al. Appeal Judgement, para. 102, and citing with approval Kunarac et al. Trial Judgement, para. 434.

[4] Martić Appeal Judgement, para. 316. See also Mrkšić and [ljivančanin Appeal Judgement, para. 41, referring for the mens rea of crimes against humanity to Kunarac et al. Appeal Judgement, paras 102-103.

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Decision on Exclusion of Evidence - 23.03.2010 KANYARUKIGA Gaspard
(ICTR-02-78-AR73.2)

The Appellant Kanyarukiga requests the exclusion of Witness YAU’s evidence as in his submission this evidence relates to material facts not properly pleaded in the operative indictment.[1]

9. The Appeals Chamber recalls that there are two ways in which mens rea may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[2]

10. In the present case, the Indictment pleads as a material fact the specific state of mind alleged in relation to the counts of genocide and complicity in genocide, in particular that Kanyarukiga acted “with the intent to destroy the Tutsi population in whole [or] in part”.[3] Given that the Indictment pleads as a material fact the specific state of mind alleged, the facts by which his mens rea is to be established are matters of evidence and need not be pleaded.[4]

[1] The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-I, Amended Indictment, 14 November 2007 (“Indictment”).

[2] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 347; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 219.

[3] Indictment, para. 4. See also Indictment, paras. 7 (“Gaspard KANYARUKIGA, with intent to destroy, in whole or in part, the Tutsi racial or ethnic group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnical group…”), 8 (“Gaspard KANYARUKIGA, with intent to destroy in whole or in part, the Tutsi racial or ethical [sic] group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnic group, and knowing that his assistance would contribute to the crime of genocide…”).

[4] Nahimana et al. Appeal Judgement, para. 347; Blaškić Appeal Judgement, para. 219.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

262. The Appeals Chamber notes that motive, as opposed to mens rea, is not an element of any crime.[1] The question whether Kanyarukiga lacked a motive to participate in the crimes for which he was convicted thus does not have the potential to invalidate the verdict and the Appeals Chamber declines to consider it.[2]

[1] Cf. Limaj et al. Appeal Judgement, para. 109.

[2] See supra, para. 7 (setting out the standards of appellate review).

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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR73.9)

22. Finally, turning to Karadžić’s contentions with respect to mens rea,[1] the Appeals Chamber recalls that “the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.”[2] Insofar as Karadžić contends that the Impugned Decision should be reversed because it did not respect this principle, the Appeals Chamber is not persuaded by his contentions. Even if Karadžić had believed that the UN Personnel were taking active part in the hostilities prior to their detention and thus were not entitled to protection under Common Article 3, his erroneous belief about the legal significance of the UN Personnel’s status would not shield him from criminal liability for using them as hostages after their detention. As explained above, Common Article 3 would apply to the detained UN Personnel irrespective of their status prior to detention,[3] and any misunderstanding by Karadžić with respect to this issue is not a valid defence.[4]

[1] Appeal, paras 53-60; Reply, paras 19-30.

[2] Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010, para. 66.

[3] See supra [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Decision of Appeal from Denial of Judgement of Aquittal for Hostage-Taking, 11 December 2012]], paras 16-17.

[4] Cf. In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, 19 July 2011, para. 147, citing Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 27 (rejecting the mistake of law defence in contempt cases).

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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)

579. The Appeals Chamber recalls that persecution as a crime against humanity requires evidence that the principal perpetrator had the specific intent to discriminate on political, racial, or religious grounds.[1] While the requisite discriminatory intent may not be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity, the “discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent.”[2]

580. Although the Trial Chamber correctly articulated the applicable law in this respect,[3] it failed to apply this standard in determining whether the rapes of K31, K14, and K62 constituted persecution. Notably, the Trial Chamber found that, in April and May 1999, Kosovo Albanians were targeted across Priština/Prishtina town by VJ and MUP forces: parts of the town were shelled by the VJ, buildings were set on fire, houses were looted, and large numbers of Kosovo Albanians were directly expelled from their homes, or fled due to the prevailing atmosphere of fear created by this campaign of violence.[4] Significantly, the Trial Chamber found that the Prosecution had failed to present “any evidence” from which the discriminatory intent of the perpetrators of the rapes could be inferred,[5] notwithstanding its finding that K31, K14, and K62 – all Kosovo Albanian women – were raped by VJ and MUP forces “in the course of the operation to remove large numbers of Kosovo Albanians from Priština/Prishtina town”.[6] In these circumstances, the Appeals Chamber considers that the Trial Chamber failed to properly consider the context in which the rapes occurred and erred in finding that there was no evidence from which the discriminatory intent of the perpetrators could be inferred. In light of this error, the Appeals Chamber will consider whether the only reasonable inference to be drawn from the evidence presented at trial was that K31, K14, and K62 were raped because they were Kosovo Albanian.

[1] Krnojelac Appeal Judgement, para. 184. See also Blaškić Appeal Judgement, para. 164.

[2] Blaškić Appeal Judgement, para. 164, referring to Krnojelac Appeal Judgement, para. 184.

[3] Trial Judgement, vol. 1, para. 180, referring to Blaškić Appeal Judgement, para. 164.

[4] See Trial Judgement, vol. 2, paras 885-888, 1240-1242.

[5] Trial Judgement, vol. 2, para. 1245 (emphasis added).

[6] Trial Judgement, vol. 2, para. 889 (emphasis added).

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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
Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

80. As discussed in connection with the Second Ground of Appeal, the Trial Chamber did not err in determining that any violation of a court order interferes with the administration of justice.[1] Consequently, it correctly stated that the mens rea requirement for contempt under Rule 77(A) of the Rules is satisfied by proof of “any knowing and wilful conduct in violation of a Chamber’s order”.[2]

85. Furthermore, the Trial Chamber also fully considered the fact that Nshogoza was acting on the instructions and advice of the Lead Counsel.[3] However, the fact that he was following orders of a superior has no bearing on whether he possessed the requisite mens rea,[4] which, as stated above, is simply the knowing and wilful violation of a court order. Consequently, Nshogoza has failed to demonstrate any error in the Trial Chamber’s findings relating to the mens rea.

[1] See supra Section IV.A.1 (Ground 2: Alleged Errors Relating to the Actus Reus: Legal Requirements).

[2] See Trial Judgement [The Prosecutor v. Léonidas Nshogoza, Case No. ICTR-07-91-T, Judgement], para. 179.

[3] Trial Judgement, paras. 180-182.

[4] Cf. Haraqija and Morina Appeal Judgement, para. 53. 

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

261. The Appeals Chamber first observes that the Trial Chamber correctly stated that the prominence of the targeted portion of the protected group is a relevant factor in determining whether the perpetrator intended to destroy at least a substantial part of the protected group.[1] Indeed, as the Trial Chamber held, “genocidal intent may […] consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”.[2] This holding is consistent with other trial judgements of the Tribunal,[3] as well as the Appeals Chamber’s own jurisprudence. The Appeals Chamber recalls, in this respect, that “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4” of the Statute.[4]

262. The Commission of Experts Report, on which the Trial Chamber relied as support for its legal analysis vis-à-vis the killings of the three Žepa leaders,[5] states, in relevant part:

[i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose.[6]

263. The Appeals Chamber finds no legal error in the Trial Chamber’s statement that the selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent.[7] The Appeals Chamber is not persuaded that the commission of genocide through the targeted killings of only the leaders of a group suggests that the leaders of the group are subject to special, stronger protection than the other members of the group, as Tolimir suggests. Recognising that genocide may be committed through the killings of only certain prominent members of the group “selected for the impact that their disappearance would have on the survival of the group as such”[8] aims at ensuring that the protective scope of the crime of genocide encompasses the entire group, not just its leaders. […]

264. […] For a finding of genocide it suffices that the leaders were “selected for the impact that their disappearance would have on the survival of the group as such”.[9] Genocide may be committed even if not all leaders of a group are killed – even though targeting “the totality [of the leadership] per se may be a strong indication of genocide regardless of the actual numbers killed”.[10]

265. […] The Appeals Chamber recalls that according to the Commission of Experts Report and as the Trial Chamber itself recognised, “[t]he character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group […] at the same time or in the wake of that” attack.[11] As the Trial Chamber found, the selective targeting of a protected group’s leadership may amount to genocide only if the leaders are selected because of “the impact that their disappearance would have on the survival of the group as such”.[12] The impact of the leaders’ disappearance may of course be assessed only after the leaders are attacked. Only by considering what happened to the rest of the protected group at the same time or in the wake of the attack on its leadership could “the impact that [the leaders’] disappearance would have on the survival of the group as such” be assessed.[13]

[…]

267. The Appeals Chamber has already established that the Trial Chamber did not err in finding that the only reasonable inference from the evidence was that the three Žepa leaders suffered a violent death at the hands of their Bosnian Serb captors.[14] However, the Trial Chamber failed to explain how their detention and killings – committed weeks after the entire Žepa population had been forcibly transferred from the enclave – had any impact “on the survival of the group as such”.[15] The Trial Chamber accepted in its conclusion that there was such an impact, but it did not consider or analyse whether or how the killings of the three Žepa leaders after the Bosnian Muslim civilian population of Žepa had been transferred to safe areas of BiH specifically affected the ability of those removed civilians to survive and reconstitute themselves as a group.[16] A finding that Žepa’s Bosnian Muslims lost three of their leaders[17] does not suffice to infer that those civilians were affected by the loss of their leaders in a way that would threaten or tend to contribute to their physical destruction as a group.

[…]

269. In this context, particularly in light of the fact that the forcible transfer operation of Žepa’s Bosnian Muslims had been completed before the three Žepa leaders were detained and killed and in the absence of any findings as to whether or how the loss of these three prominent figures affected the ability of the Bosnian Muslims from Žepa to survive in the post-transfer period, the inference of genocidal intent was not the only reasonable inference that could be drawn from the record. In the view of the Appeals Chamber, the evidence does not allow for the conclusion that the murders of the three Žepa leaders had a significant impact on the physical survival of the group as such so as to amount to genocide. There is, in sum, no sufficient evidentiary support for the finding that Hajrić, Palić, and Imamović were killed “with the specific genocidal intent of destroying part of the Bosnian Muslim population as such”.[18] […]

[1]    Trial Judgement, para. 749.

[2]    Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82.

[3]    See Sikirica et al. Judgement on Motions to Acquit, para. 77; Jelisić Trial Judgement, para. 82.

[4]    Krstić Appeal Judgement, para. 12 (cited in Trial Judgement, para. 749).

[5]    Trial Judgement, paras 749, 777. The Jelisić Trial Judgement also relied on this report as the basis for its holding that genocidal intent may consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such. See Jelisić Trial Judgement, para. 82.

[6]    Commission of Experts Report, para. 94 (emphasis added).

[7]    Trial Judgement, paras 749, 777, and authorities cited therein. The Appeals Chamber notes that this statement correctly stated the applicable law, even though, with the exception of the present case, no conviction for genocide has ever been entered by the Tribunal, or other international criminal tribunals, on the basis of the selective targeting of a protected group’s leadership. See, e.g., Sikirica et al. Judgement on Motions to Acquit, paras 84-85; Jelisić Trial Judgement, paras 82-83.

[8]    Trial Judgement, para. 777, and authorities cited therein.

[9]    Trial Judgement, para. 777, and authorities cited therein.

[10]   Commission of Experts Report, para. 94 (cited in Trial Judgement, para. 777).

[11]   Commission of Experts Report, para. 94. The Trial Chamber also stated that the killings of the three Žepa leaders must not be seen in isolation, but in conjunction with “the fate of the remaining population of Žepa”. Trial Judgement, para. 781.

[12]   Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82.

[13]   Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82.

[14]   See supra, para. 144.

[15]   Trial Judgement, para. 782.

[16]   Trial Judgement, paras 780-782.

[17]   Trial Judgement, para. 782.

[18]   Trial Judgement, para. 782. 

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ICTR Statute Article 2 ICTY Statute Article 4
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 - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

222. The Appeals Chamber recalls that the mens rea for aiding and abetting is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal perpetrator.[1] Specific intent crimes such as genocide do not require that the aider and abettor share the mens rea of the principal perpetrator; it suffices to prove that he knew of the principal perpetrator’s specific intent.[2]

[…]

227. In these circumstances, the Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo knew that, by instructing the refugees to move to Kabuye hill and subsequently bringing soldiers there, he was assisting the assailants in killing the refugees, and that he knew of their genocidal intent. Ntawukulilyayo correctly points out that the Trial Chamber found that he had good character and provided assistance to Tutsis before, during, and after the genocide.[3] Such evidence was indeed relevant to the assessment of Ntawukulilyayo’s mens rea and it might have been opportune for the Trial Chamber to have discussed such evidence in the relevant section of its legal findings. Nevertheless, the Appeals Chamber considers that, based on the totality of the evidence in this case, such evidence of Ntawukulilyayo’s good character and assistance to other Tutsis did not preclude a reasonable trier of fact from concluding that the only reasonable inference was that Ntawukulilyayo knew that the Tutsi refugees would not in fact be protected at Kabuye hill, but rather killed.[4]

[1] See, e.g., Kalimanzira Appeal Judgement, para. 86; Rukundo Appeal Judgement, para. 53; Nahimana et al. Appeal Judgement, para. 482.

[2] See Kalimanzira Appeal Judgement, para. 86; Rukundo Appeal Judgement, para. 53; Haradinaj et al. Appeal Judgement, para. 58; Blagojević and Jokić Appeal Judgement, para. 127.

[3] Trial Judgement, paras. 474, 475. See also infra, para. 240.

[4] In this respect, the Appeals Chamber notes, for example, the Trial Chamber’s reliance on Exhibit P30 as circumstantial corroboration of Ntawukulilyayo’s involvement in facilitating the attacks on Tutsis at Kabuye hill. See Trial Judgement, para. 293. The Trial Chamber accurately described Exhibit P30 as “a letter [dated 28 May 1994] confirming that [Ntawukulilyayo] visited the five communes [of Gisagara sub-prefecture] and addressed ‘the people’ concerning security as well as the need to assist the Rwandan army; he requested the assistance of soldiers to aid members of the population ‘in finding out whether there are no enemies amongst [] refugees’ that had gathered in Gisagara”. See ibid., fn. 412 (emphasis added). See also ibid., fn. 411 (emphasis added). Although this statement postdates the Kabuye hill killings, it offers circumstantial evidence of Ntawukulilyayo’s state of mind during the genocide and, in the Appeals Chamber’s view, goes against his suggestion that the Trial Chamber could also reasonably have found that his primary consideration in requesting military assistance was to protect incoming refugees.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

162. [...] The Trial Chamber [in the Furundžija Appeal Judgement] had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal.[1]  It is clear that what must be shown is that the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.

[1] Ibid. [Furund`ija Appeal Judgement], para. 245.

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Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

53. With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [...]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[1] Specific intent crimes such as genocide also require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[2]

92. […] It further recalls that aiding and abetting as a form of responsibility pursuant to Article 6(1) of the Statute does not require that the accused be in a position of authority.[3] […]

[1] Muvunyi Appeal Judgement, para. 79. See also Karera Appeal Judgement, para. 321; Mrkšić and [ljivančanin Appeal Judgement, para. 49.

[2] Blagojević and Jokić Appeal Judgement, para. 127; Blagoje Simić Appeal Judgement, para. 86.

[3] Muhimana Appeal Judgement, para. 189. 

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

126. In relation to the mens rea applicable to crimes against humanity, the Appeals Chamber reiterates its case law pursuant to which knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof, is required.[1] The Trial Chamber, in stating that it “suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan,” did not correctly articulate the mens rea applicable to crimes against humanity. Moreover, as stated above, there is no legal requirement of a plan or policy, and the Trial Chamber’s statement is misleading in this regard. Furthermore, the Appeals Chamber considers that evidence of knowledge on the part of the accused depends on the facts of a particular case; as a result, the manner in which this legal element may be proved may vary from case to case. Therefore, the Appeals Chamber declines to set out a list of evidentiary elements which, if proved, would establish the requisite knowledge on the part of the accused.

See also para. 127.

[1] Tadić Appeal Judgement, para. 248; Kunarac Appeal Judgement, paras. 99, 103.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

32. […] The issue which the Appeals Chamber will address is whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, and if so, how it should be defined.

41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chamber’s above articulations of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chamber’s standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.

42. The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[1]

See also para. 345 et seq.

[1] The French translation of this legal standard reads as follows:

Quiconque ordonne un acte ou une omission en ayant conscience de la réelle probabilité qu’un crime soit commis au cours de l’exécution de cet ordre possède la mens rea requise pour établir la responsabilité aux termes de l’article 7 alinéa 1 pour avoir ordonné. Le fait d’ordonner avec une telle conscience doit être considéré comme l’acceptation dudit crime.

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Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

66. The Appeals Chamber recalls its holding that:

The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.[1]

It is well-established in the Tribunal’s jurisprudence that the elements of a Common Article 3 crime encompass the requirement that the victim did not take an active part in the hostilities at the time when the crime was committed.[2] Therefore, the Appeals Chamber is satisfied that the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.[3]

67. In the present case, the Trial Chamber did not make explicit findings on the mens rea of the direct perpetrators in relation to the status of the victims of the Common Article 3 crimes of murder and cruel treatment.[4] However, when read as a whole,[5] the Trial Judgement shows that the Trial Chamber examined whether the direct perpetrators knew or should have been aware of the status of the victims in relation to each crime, as demonstrated by its findings on the factual circumstances in which the crimes were committed.[6] […]

67. […] In these circumstances, where the direct perpetrators’ knowledge of the status of the victims was part of the Trial Chamber’s factual findings, the Appeals Chamber need not consider whether such findings are necessary for a conviction for planning, instigating and ordering. Tarčulovski’s argument in this regard is dismissed. Under the third and fourth grounds of appeal, the Appeals Chamber will consider further whether the totality of the Trial Chamber’s factual findings in relation to the status of the victims are reasonable.[1]

68. With respect to Tarčulovski’s mens rea, the Appeals Chamber recalls that he was convicted of planning, instigating and ordering crimes including those under Common Article 3. Hence, Tarčulovski was required to have the direct intent or the awareness of the substantial likelihood that the crimes would be committed in the execution of his plan, instigation and order.[2] Indeed the Trial Chamber found that Tarčulovski was responsible for planning, instigating and ordering the “deliberate but indiscriminate attack against the residents of Ljuboten of Albanian ethnicity”.[3] Given the indiscriminate nature of the attack, the Appeals Chamber is satisfied that the Trial Chamber reasonably concluded that Tarčulovski possessed the requisite mens rea for these modes of liability.[4] His argument in this regard is dismissed.

[1] See infra paras 86, 95, 102 and 119.

[2] See Kordić and Čerkez Appeal Judgement, paras 29-32, and infra paras 132 and 174.

[3] Trial Judgement, para. 573. See also ibid., para. 574; infra paras 135, 153-154, 157 and 161.

[4] Trial Judgement, para. 576. See also the Appeals Chamber’s findings relevant to this matter in infra paras 132, 135, 150 and 174. Cf. Milošević Appeal Judgement, para. 273.

[1] Naletilić and Martinović Appeal Judgement, para. 114; see also ibid., para. 118. 

[2] Strugar Appeal Judgement, para. 172; Čelebići Appeal Judgement, paras 420 and 423-424.

[3] See Naletilić and Martinović Appeal Judgement, paras 118-121, analysing, in light of the principle of individual guilt, the mens rea requirement in relation to the international or internal nature of an armed conflict and arriving at the same conclusion. Concerning the mens rea of the crime of attacks against civilians, the Appeals Chamber held that it must be proven that the perpetrator was aware or should have been aware of the civilian status of the persons attacked (Strugar Appeal Judgement, para. 271, citing Galić Trial Judgement, para. 55). See Haradinaj et al. Trial Judgement, para. 62; Milutinović et al. Trial Judgement, para. 134; Delić Trial Judgement, para. 44; Martić Trial Judgement, para. 47; Krajišnik Trial Judgement, para. 847; Halilović Trial Judgement, para. 36. Cf. Elements of Crimes, Article 8(2)(c)(i)-1 and 8(2)(c)(i)-3 of the ICC Statute.

[4] Trial Judgement [Prosecutor v. Ljube Boškoski and Johan Tačulovski, Case No. IT-04-82-T, Judgement, 10 July 2008], paras 301-303. The Appeals Chamber notes that the Trial Chamber made explicit findings on all the other aspects of the mens rea of the direct perpetrators in relation to crimes of murder, wanton destruction and cruel treatment (Trial Judgement, paras 312, 320, 328, 330-332, 380, 385 and 387-388). In the Tarčulovski Reply Brief, Tarčulovski appears to contest these findings, in particular due to the lack of specific identification of the direct perpetrators (Tarčulovski Reply Brief, paras 53 (murder), 75 (wanton destruction) and 78 (cruel treatment); see also Tarčulovski Appeal Brief, para. 166). The Appeals Chamber finds that the Trial Chamber reasonably made these findings in light of the evidence taken as a whole. As regards the identification of the direct perpetrators, see infra paras 73-75 and 89.

[5] See Orić Appeal Judgement, para. 38; Naletilić and Martinović Appeal Judgement, para. 435; Stakić Appeal Judgement, para. 344.

[6] See, e.g., Trial Judgement, paras 303, 310-312, 314-320, 323-328, 344-345, 383, 385 and 387-388. 

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ICTY Statute Article 3;
Article 3(b)
Other instruments Geneva Convention: common Article 3.
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 - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

45. In Vasiljević, the Appeals Chamber set out the actus reus and mens rea of aiding and abetting. It stated:

(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. […]

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal. […][1]

The Appeals Chamber considers that there are no reasons to depart from this definition.

46. In this case, the Trial Chamber, following the standard set out in Furundžija, held that the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[2] It further stated that the mens rea required is “the knowledge that these acts assist the commission of the offense.”[3] The Appeals Chamber considers that the Trial Chamber was correct in so holding.

47. The Trial Chamber further stated that the actus reus of aiding and abetting may be perpetrated through an omission, “provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea.”[4]  It considered:

In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.[5]

The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting. 

48. The Trial Chamber in this case went on to state:

Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom.[6]

The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime.  In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.  It further agrees that the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.

49. In relation to the mens rea of an aider and abettor, the Trial Chamber held that “in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”[7] However, as previously stated in the Vasiljević Appeal Judgement, knowledge on the part of the aider and abettor that his acts assist in the commission of the principal perpetrator’s crime suffices for the mens rea requirement of this mode of participation.[8] In this respect, the Trial Chamber erred.

50. The Trial Chamber agreed with the statement in the Furundžija Trial Judgement that “it is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”[9] The Appeals Chamber concurs with this conclusion.

[1] Vasiljević Appeal Judgement, para. 102.

[2] Trial Judgement, para. 283 (quoting Furundžija Trial Judgement, para. 249).

[3] Trial Judgement, para. 283 (quoting Furundžija Trial Judgement, para. 249).

[4] Trial Judgement, para. 284 (footnote omitted).

[5] Trial Judgement, para. 284 (footnote omitted).

[6] Trial Judgement, para. 285 (citing Furundžija Trial Judgement, para. 233; Aleksovski Trial Judgement, para. 61).

[7] Trial Judgement, para. 286.

[8] Vasiljević Appeal Judgement, para. 102.

[9] Trial Judgement, para. 287 (quoting Furundžija Trial Judgement, para. 246). See, for example, in German law, “Risikoerhöhungstheorie” (“theory of added peril”), BGH St. 42, 135-139.

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Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

127. […] The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.[1] In cases of specific intent crimes such as persecutions or genocide, the aider and abettor must know of the principal perpetrator’s specific intent.[2]

221.  In describing the applicable law for aiding and abetting, the Trial Chamber restated the formulation of the mens rea for aiding and abetting found in the Vasiljević Appeal Judgement:

[I]t is not required that the aider and abettor shared the mens rea required for the crime; it is sufficient that the aider and abettor had knowledge that his or her own acts assisted in the commission of the specific crime by the principal offender. The aider and abettor must also be aware of the “essential elements” of the crime committed by the principal offender, including the state of mind of the principal offender.[3]

The Appeals Chamber has applied this formulation consistently in its judgements.[4] Consequently, the Appeals Chamber finds no legal error on the part of the Trial Chamber in this regard.

[1] Simić Appeal Judgement, para. 86; Vasiljević Appeal Judgement, para. 102; Blaškić Appeal Judgement, para. 46; Ntagerura et al. Appeal Judgement, para. 370.

[2] Simić Appeal Judgement, para. 86; Krstić Appeal Judgment, paras. 140, 141.

[3] Trial Judgement, para. 727.

[4] See, e.g., Blaškić Appeal Judgement, para. 45; Vasiljević Appeal Judgement, para. 102; Tadić Appeal Judgement, para. 229.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

[1] Trial Judgement, paras 829, 834.

[2] See Trial Judgement, para. 386.

[3] See Trial Judgement, para. 387.

[4] Cf. Trial Judgement, para. 387.

[5] Trial Judgement, para. 388.

[6] Trial Judgement, para. 388.

[7] Blaškić Appeal Judgement, para. 42.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

111. […] The Appeals Chamber holds that the mens rea for persecutions “is the specific intent to cause injury to a human being because he belongs to a particular community or group.” The Appeals Chamber stresses that there is no requirement in law that the actor possess a “persecutory intent” over and above a discriminatory intent.[1]

112. In addition, the Appeals Chamber considers that a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions.[2]

[1] Blaškić Appeal Judgement, para. 165.

[2] Blaškić Appeal Judgement, para. 166.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

37. The Appeals Chamber notes that the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of the acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population.[1] While spreading terror must be the primary purpose of the acts or threats of violence, it need not be the only one.[2] The Galić Appeal Judgement suggests that such intent can be inferred from the “nature, manner, timing and duration” of the acts or threats.[3] However, this is not an exhaustive list of mandatory considerations but an indication of some factors that may be taken into account according to the circumstances of the case. […] Furthermore, the Appeals Chamber rejects Milošević’s argument that the Trial Chamber could not take into account the evidence relative to the actus reus of the crime when establishing the mens rea. In this regard, the Appeals Chamber finds that both the actual infliction of terror and the indiscriminate nature of the attack were reasonable factors for the Trial Chamber to consider in determining the specific intent of the accused in this case.

[1] Galić Appeal Judgement, para. 104.

[2] Galić Appeal Judgement, para. 104.

[3] Galić Appeal Judgement, para. 104.

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

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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Notion(s) Filing Case
Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

51.     The Appeals Chamber draws attention to the distinction between the mental element required for aiding and abetting and that required for co-perpetration. In the case of aiding and abetting, the requisite mental element is knowledge that the acts committed by the aider and abettor further the perpetration of a specific crime by the principal offender. In the case of co-perpetration, the intent to perpetrate the crime or to pursue the joint criminal purpose must be shown.[1] The Appeals Chamber also recalls that in the Aleksovski Appeals Judgement it followed the Furundžija Judgement and held that “it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that […] the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.”[2] The Appeals Chamber also stated that “the aider and abettor [must be aware] of the essential elements of the crime committed by the principal (including his relevant mens rea).” The Appeals Chamber notes that no cogent reason was given which would justify this case-law being amended.[3]

52.     The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration. […]

[1] See Tadić Appeals Judgement, para. 229.

[2] Aleksovski Appeals Judgement, para. 162.

[3] Aleksovski Appeals Judgement, para. 107. See also para. 109: “It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.”

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Notion(s) Filing Case
Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

102. […] [T]he accused must have had the intent to commit the underlying offence or offences with which he is charged, and that he must have known “that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.”[1] This requirement […] does not entail knowledge of the details of the attack.[2]

103. For criminal liability pursuant to Article 5 of the Statute, “the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.”[3] Furthermore, the accused need not share the purpose or goal behind the attack.[4] It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim.  It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.

[1]   Trial Judgement, para 434.

[2]   Ibid.

[3]   Ibid., para 433. See also Tadić Appeal Judgement, paras 248 and 252.

[4]   See, for a telling illustration of that rule, Attorney-General of the State of Israel v Yehezkel Ben Alish Enigster, District Court of Tel-Aviv, 4 January 1952, para 13.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
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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Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

109. The Appeals Chamber notes that motive is generally not an element of criminal liability. The Appeals Chamber has repeatedly confirmed the “‘inscrutability of motives in criminal law’ insofar as liability is concerned, where an intent […] is clear”.[1] […]

[1] Jelisić Appeal Judgement, para. 71, reference to Tadić Appeal Judgement, para. 269. See also Kvočka Appeal Judgement, para. 106. Motive may have a direct impact at sentencing as a mitigating or aggravating circumstance, Tadić Appeal Judgement, para. 269.

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Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

218. The Appeals Chamber notes that other Trial Chambers have held that an accused’s proximity to an area of criminal activity can be a factor from which an accused’s knowledge of the crimes can be inferred.[1] However, in this case, the Appeals Chamber finds that the Trial Chamber reasonably refused to find that the alleged occasional presence of Fatmir Limaj in the immediate proximity of the Llapushnik/Lapušnik prison camp during and after the battle of 29 May 1998, and at one oath ceremony in June-July 1998,[2] proved his knowledge of the existence of the prison camp or his participation in it.

[1] See Blagojević and Jokić Trial Judgement, paras 483, 748; Aleksovski Trial Judgement, para. 80; Bagilishema Trial Judgement, para. 925.

[2] Trial Judgement, paras 569 and 591; Ruzhdi Karpuzi, T. 3096-3104 (7.2.2005), T. 3175-3176 (8.2.2005) (he testified about one oath ceremony in the yard of Bali’s house at the end of June-early July); Zeqir Gashi, T. 5618 (11.4.2005) (he testified about one oath ceremony somewhere in Llapushnik/Lapušnik); Witness L64, T. 4386 (15.3.2006), T. 4420-4421 (16.3.2005) (he testified about two oath ceremonies in early June/mid-June near the kitchen of HQ2 which is “Vojvoda’s” ‑ or Gzim Gashi’s, a.k.a. “Gzim Vojvoda” ‑ compound according to Trial Judgement, para. 693. See also Trial Judgement, para. 714 and Ruzhdi Karpuzi, T. 3091 (7.2.2005).

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

428. It is well established that the mens rea of aiding and abetting requires that an aider and abettor know that his acts would assist in the commission of the crime by the principal perpetrator and must be aware of the “essential elements” of the crime.[1] It does not require that he shares the intention of the principal perpetrator of such crime, as Sredoje Lukić submits. […]

440. The Appeals Chamber further recalls that an aider and abettor must know that his acts would assist the commission of the crime by the principal perpetrators and must be aware of the “essential elements” of the crime committed by the principal perpetrator.[2] […]

458. The Trial Chamber’s statement of the law with regard to the mens rea of aiding and abetting is correct.[3] The special intent crime of persecutions requires in addition that:

[the aider and abettor] be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration.[4]

[1] Blagojević and Jokić Appeal Judgement, para. 221; Aleksovski Appeal Judgement, para. 162. See also Blaškić Appeal Judgement, para. 49; Vasiljević Appeal Judgement, para. 102; Rukundo Appeal Judgement, para. 53; Karera Appeal Judgement, para. 321.

[2] Aleksovski Appeal Judgement, para. 162; Blagojević and Jokić Appeal Judgement, para. 221.

[3] Trial Judgement, para. 902.

[4] Simić Appeal Judgement, para. 86, referring to Krnojelac Appeal Judgement, para. 52, Aleksovski Appeal Judgement, para. 162. 

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Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber first delineated the crime:

69. The crime charged under Count 1 of the Indictment pursuant to Article 3 of the Statute and on the basis of Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II is the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. It encompasses the intent to spread terror when committed by combatants[1] in a period of armed conflict. The findings of the Appeals Chamber with respect to grounds five, sixteen and seven will therefore not envisage any other form of terror.

The Appeals Chamber then determined that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties (paras 87-90). It added – Judge Schomburg dissenting – that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, from at least the period relevant to the Indictment (paras 91-98).

Finally, the Appeals Chamber identified the elements of this crime (see para. 102 for the actus reus and paras 103-104 for the mens rea).

[1] See Kordić and Čerkez Appeal Judgement, para. 50.

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ICTY Statute Article 3 Other instruments Additional Protocol I: Article 51(2).
Additional Protocol II: Article 13(2).
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. […]

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide.  These Chambers arrived at the same conclusion.  In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”  This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.

[…]

12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.  The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations.  The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry.  The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.  In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration.  If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.

13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered.  Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale.  Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.  The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him.  While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.

14. These considerations, of course, are neither exhaustive nor dispositive.  They are only useful guidelines.  The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.

See also para. 8 (part) and paras. 9–11.

32. In determining that genocide occurred at Srebrenica, the cardinal question is whether the intent to commit genocide existed.  While this intent must be supported by the factual matrix, the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part.  Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent.  The international attention focused on Srebrenica, combined with the presence of the UN troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way.  Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.

33. The Trial Chamber - as the best assessor of the evidence presented at trial - was entitled to conclude that the evidence of the transfer [of women, children, and elderly within the Sebrenica enclave to other areas of Muslim-controlled Bosnia] supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica.  The fact that the forcible transfer does not constitute in and of itself a genocidal act[6] does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff.  The genocidal intent may be inferred, among other facts, from evidence of “other culpable acts systematically directed against the same group.”

Inferring intent from the factual circumstances of the crime:

[…]

34. The Defence also argues that the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.[8]  The absence of such statements is not determinative.  Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.[9]  The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified.  If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.

35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent.  As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.  The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS.[10]  The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here.  This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.

[1] See Art. 2 of the ICTR Statute (defining the specific intent requirement of genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”).

[2] Kayishema and Ruzindana Trial Judgement, para. 97.

[3] See Bagilishema Trial Judgement, para. 64 (“the intention to destroy must target at least a substantial part of the group”) (citing Kayishema and Ruzindana Trial Judgement, para. 97); Semanza Trial Judgement and Sentence, para. 316 (“The intention to destroy must be, at least, to destroy a substantial part of the group”) (citing Bagilishema Trial Judgement, para. 64).  While Kayishema used the term “considerable number” rather than “substantial part,” Semanza and Bagilishema make it clear that Kayishema did not intend to adopt a different standard with respect to the definition of the term “a part.”  The standard adopted by the Trial Chambers of the ICTR is therefore consistent with the jurisprudence of this Tribunal.

[4] The Trial Chambers in Jelisić and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality.  See Jelisić Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65.  Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied.

[5] For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235.

[6] See Stakić Trial Judgement, para. 519 & nn. 1097 - 1098 (citing K. Kreß, Münchner Kommentar zum StGB, Rn 57, section 6 VStGB (2003); William A. Schabas, Genocide in International Law (2000), p. 200; BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733)).

[7] Jelisić Appeal Judgement, para. 47.

[8] Defence Appeal Brief [Defence Appeal Brief, 7 May 2002], paras. 74-77.

[9] Jelisić Appeal Judgement, para. 47; see also Rutaganda Appeal Judgement, para. 528.

[10] Trial Judgement, paras. 591 - 599.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

159.    […] As noted by the Trial Chamber, explicit manifestations of criminal intent are, for obvious reasons, often rare in the context of criminal trials. In order to prevent perpetrators from escaping convictions simply because such manifestations are absent, the requisite intent may normally be inferred from relevant facts and circumstances. […]

See also para. 198.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

161.    […] The Appeals Chamber notes that criminal intent (mens rea) must not be confused with motive and that, in respect of genocide, personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed “with intent to destroy, in whole or in part a national, ethnical, racial or religious group”.[1]

[1] See also Tadić Appeal Judgement, para. 269.

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ICTR Statute Article 2 ICTY Statute Article 4
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

198.    In line with the relevant international case law, referred to in the foregoing analysis, a person may be held criminally liable for any conduct, where it is determined that he participated knowingly in the commission of a crime, if his participation directly and substantially contributed to the perpetration of the crime.[1] The intent to participate in the commission of a crime may thus be inferred from the accused’s participation, particularly from his aiding and abetting. Ultimately, and as acknowledged by the Trial Chamber, there must on the part of the Accused be a clear awareness that this participation will lead to the commission of a crime.”[2] That intention may be inferred from a number of facts,[3] the assessment of which falls to the Trial Chamber. […]

[1] Tadić Trial Judgement, 1997, para. 674. The requirement of intent under Article 6 (1) thus includes knowledge of the act of participation and a conscious decision to participate by planning, instigating, ordering, committing or otherwise aiding and abetting in the preparation of a crime.

[2] Trial Judgement, para. 203.

[3] Akayesu Trial Judgement, para. 478.

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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)

1036. The Appeals Chamber recalls that the mens rea for extermination has been defined as the intention of the perpetrator to: (i) kill on a large scale; or (ii) systematically subject a large number of people to conditions of living that would lead to their deaths.[1] In this regard, the Appeals Chamber recalls that it has consistently held that the elements of the crime of extermination are the same as those required for murder as a crime against humanity, with the difference that extermination is killing on a large scale.[2] As such, the Appeals Chamber considers that the mens rea for extermination to “(i) kill on a large scale” can be met by establishing the mens rea for murder as a crime against humanity – i.e. the intent to: (i) kill the victim; or (ii) wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death[3] – plus the additional intention to do so on a large scale.[4]

[1] Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, paras 259-260. See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 45.

[2] Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, para. 260. See Popović et al. Appeal Judgement, para. 701.

[3] Kvočka et al. Appeal Judgement, para. 261.

[4] In this regard, the Appeals Chamber also recalls that “[t]]he principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime” (Boškoski and Tarčulovski Appeal Judgement, para. 66, quoting Naletilić and Martinović Appeal Judgement, para. 114). Thus, for a conviction of extermination, not only the actus reus but also the mens rea must encompass the large scale element.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

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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(IT-08-91-A)

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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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

2135.            Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (h) Persecutions on political, racial and religious grounds[.]

2136.            The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds.[1] While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that “it [was] open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law.”[2] Whether or not the Security Council may have defined the crime of persecution as a crime against humanity more narrowly than necessary under customary international law, the Tribunal’s jurisdiction is limited to persecution on political, racial, and religious grounds.[3]

2137.            As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the “racial” ground. The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”,[4] it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.[5] In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes “ethnicity” from “race” in the listed discriminatory grounds for the attack against a civilian population.[6] The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that “ethnicity” cannot be encapsulated in “race”. Indeed, interpreting the discriminatory ground of “race” in Article 3(h) of the Statute as including “ethnicity” would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous.[7] According to a textual and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that “ethnicity” cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[8] Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber’s holding, did not extend it to include “ethnicity” as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape”, the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.[9] However, the Appeals Chamber observes that the Trial Chamber’s reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is misplaced.[10] Contrary to the Trial Chamber’s finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus – and not the mens rea – of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact.[11]

2139.            Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape.”[12] […]

[1] Cf. Tadić Appeal Judgement, para. 284; Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Appeal Decision on Jurisdiction”), paras. 78, 140-141. The Appeals Chamber notes that this is similar to the Statute of the ICTY. See Article 5(h) of the Statute of the ICTY. On the contrary, the Appeals Chamber observes that the Rome Statute does not limit the jurisdiction of the ICC to an exhaustive list of discriminatory grounds on which persecution as a crime against humanity must be committed. Indeed, Article 7(1)(h) of the Rome Statute contains an illustrative (open-ended) list of prohibited grounds for persecution as a crime against humanity, which reads as follows: “For the purpose of this Statute, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. The Appeals Chamber further notes that the Statute of the Special Court for Sierra Leone (“SCSL”), which was adopted after the Rome Statute, limits the jurisdiction of the SCSL over the crime of persecution as a crime against humanity to an exhaustive list of four discriminatory grounds, namely political, racial, ethnic, and religious grounds. See Article 2(h) of the Statute of the SCSL.

[2] Tadić Appeal Judgement, para. 296. See also Tadić Appeal Decision on Jurisdiction, paras. 78, 140, 141. Cf. also Tadić Appeal Judgement, paras. 249, 251.

[3] Cf. Tadić Trial Judgement, para. 711 (“There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nürnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics.”) (internal references omitted).

[4] Tadić Appeal Judgement, para. 282.

[5] Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331 (“Vienna Convention”). See also Tadić Appeal Judgement, para. 282, referring to International Court of Justice, Competence of the General Assembly for the admission of a State to the United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4; Aleksovski Appeal Judgement, para. 98, referring to Article 31(1) of the Vienna Convention (“Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties.”); Čelebići Appeal Judgement, para. 67 and references cited therein (reiterating that Article 31 of the Vienna Convention reflects customary international law); Jelisić Appeal Judgement, para. 35 (“Following the settled jurisprudence of the Tribunal, those words [(of Rules 98bis(B) of the ICTY Rules of Procedure and Evidence)] are to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to [them] in their context and in the light of [their] object and purpose’, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties 1969.” (alteration in the original)).

[6] See supra, para. 2135.

[7] The Appeals Chamber recalls that “it is an elementary rule of interpretation that one should not construe a provision or a part of [it] as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements.” See Tadić Appeal Judgement, para. 284. The Appeals Chamber further observes that the distinction between “race” and “ethnicity” is also clearly established in the definition of genocide given in Article 2 of the Statute (“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […].”).

[8] Nahimana et al. Appeal Judgement, para. 985. See also, e.g., Kvočka et al. Appeal Judgement, para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Krnojelac Appeal Judgement, para. 185.

[9] Trial Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para. 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. The Appeals Chamber notes that paragraph 2209 of the Bagosora et al. Trial Judgement also refers to paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.

[10] See Trial Judgement, para. 6097.

[11] See Nahimana et al. Appeal Judgement, para. 986. The Appeals Chamber further notes that, in the Nahimana et al. case, the convictions for persecution as a crime against humanity were based on the Trial Judgement’s finding that “the discriminatory intent of the Accused falls within the scope of crime against humanity of persecution on political grounds of an ethnic character”, noting that “RTLM, Kangura and CDR […] essentially merged political and ethnic identity, defining their political target on the basis of ethnicity and political positions relating to ethnicity.” See Nahimana et al. Trial Judgement, para. 1071. This finding was not challenged on appeal.

[12] Trial Judgement, para. 6097.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h) Other instruments Article 31(1) of the Vienna Convention on the Law of Treaties of 1969
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1011.            […] [T]he Trial Chamber found that, at the beginning of June 1994, Nyiramasuhuko came to the Cyarwa-Sumo Sector, Ngoma Commune, and distributed condoms for the Interahamwe to be used in the raping and killing of Tutsi women in that sector.[1] The Trial Chamber further found that Nyiramasuhuko gave the following order to the woman to whom she distributed the condoms: “[g]o and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands.”[2]

1012.            […] [T]he Trial Chamber found that “this circumstantial evidence shows Nyiramasuhuko’s intent to destroy, in whole or in substantial part, the Tutsi group”[3] and relied in part on this evidence to find that Nyiramasuhuko possessed the specific intent to commit genocide in relation to other events.[4]

[…]

1029.            With respect to Nyiramasuhuko’s argument that, although genocidal intent can be inferred, it cannot be split from the actus reus and must be assessed with respect to the specific alleged crime, at the alleged time, and in the circumstances alleged, the Appeals Chamber recalls that genocidal intent may be inferred, inter alia, from evidence of other culpable acts systematically directed against the same group.[5] […]

1030.            The Appeals Chamber notes that Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women occurred in the beginning of June 1994. In light of the time elapsed between the Mid-May Attack and this incident, this incident alone could not effectively demonstrate Nyiramasuhuko’s specific intent when ordering killings of Tutsis at the prefectoral office during the Mid‑May Attack.[6] However, as highlighted previously, the Trial Judgement reflects that the finding of Nyiramasuhuko’s genocidal intent when ordering killings at the prefectoral office during the Mid-May Attack – and the Night of Three Attacks – was predicated on her role in the attack that occurred then and there.[7] In addition, the Trial Chamber also relied on additional circumstantial evidence that Nyiramasuhuko possessed the specific intent to commit genocide from 19 April 1994, when she tacitly approved Kambanda’s and Sindikubwabo’s Speeches during Nsabimana’s Swearing-In Ceremony. Nyiramasuhuko has not demonstrated that the Trial Chamber erred in this regard. To the extent that the Trial Chamber relied on Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women as additional circumstantial evidence of Nyiramasuhuko’s genocidal intent, the Appeals Chamber finds no error in this approach.

[1] Trial Judgement, paras. 4985, 5938, 6014.

[2] Trial Judgement, paras. 4985, 5938, 6014.

[3] Trial Judgement, paras. 5940, 6018.

[4] Trial Judgement, paras. 5870, 5871. See also ibid., paras. 5873, 5874. Nyiramasuhuko was found guilty of genocide for ordering Interahamwe to kill Tutsis who had sought refuge at the Butare Prefecture Office. See ibid., paras. 5867, 5876, 5969, 5970.

[5] Rukundo Appeal Judgement, para. 234; Blagojević and Jokić Appeal Judgement, para. 123; Krstić Appeal Judgement, para. 33. See also Jelisić Appeal Judgement, para. 47; Semanza Appeal Judgement, paras. 261, 262; Kayishema and Ruzindana Appeal Judgement, para. 159.

[6] Cf. Šainović et al. Appeal Judgement, para. 1035.

[7] See supra, para. 985.

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