Natural and foreseeable consequences

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

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

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

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

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

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

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

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

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

[2] Brđanin Appeal Judgement, para. 432.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

[9] Blaškić Appeal Judgement, para. 33.

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

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

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

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

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

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

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

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

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

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Appeal Judgement - 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)

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

[1] Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 205.

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

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