Specific intent crimes
|Appeal Judgement - 28.02.2005||
KVOČKA et al.
109. The Trial Chamber held that:
Where the crime requires special intent, such as the crime of persecution charged in count 1 of the Amended Indictment, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator. However, if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent. This shared knowledge too can be inferred from the circumstances. If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on “political, racial or religious grounds”. If the criminal enterprise entails killing members of a particular ethnic group, and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds. Thus, a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group.
110. The Appeals Chamber affirms the Trial Chamber’s conclusion that participants in a basic or systemic form of joint criminal enterprise must be shown to share the required intent of the principal perpetrators. Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise. If the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime. […].
 Trial Judgement, para. 288.
 Krnojelac Appeal Judgement, para. 111.
|Appeal Judgement - 30.06.2016||
STANIŠIĆ & ŽUPLJANIN
597. With respect to Stanišić’s argument that the Tribunal’s case law gives rise to cogent reasons to depart from the Tribunal’s case law for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise, the Appeals Chamber considers that Stanišić conflates the mens rea requirement for the crime of persecutions with the subjective element of a mode of liability by which criminal responsibility may attach to an accused. It recalls that for a conviction for persecutions pursuant to the third category of joint criminal enterprise, it is sufficient that it was foreseeable to the accused that an act of persecutions could be committed and that it could be committed with discriminatory intent. […]
599. With respect to Stanišić’s argument that customary international law does not permit convictions for specific intent crimes pursuant to the third category of joint criminal enterprise, the Appeals Chamber observes that in its analysis of customary international law in the Tadić case, it specifically considered the provisions of the Convention for the Suppression of Terrorist Bombings and the ICC Statute cited by Stanišić. It found, on the basis on numerous sources from both civil and common law jurisdictions, including post‑World War II cases, that the third category of joint criminal enterprise has existed as a mode of liability in customary international law since at least 1992 and that it applies to all crimes. While Stanišić asserts that the Convention for the Suppression of Terrorist Bombings, the ICC Statute, and the post‑World War II cases on which he relies do not expressly provide for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise or even the third category of joint criminal enterprise itself, this does not undermine the Appeals Chamber’s analysis of customary international law and conclusion in the Tadić case, which has been consistently confirmed in the Tribunal’s subsequent jurisprudence. In the Appeals Chamber’s view, Stanišić merely relies upon the absence of express support in the sources he identifies, without showing that they give rise to cogent reasons to depart from the Tribunal’s existing jurisprudence.
 Đorđević Appeal Judgement, para. 919; Brđanin Appeal Decision of 19 March 2004, para. 6. It must further be shown that the accused willingly took the risk that the crime might be committed (see supra [Stanišić and Župljanin Appeal Judgement]], para. 595).
 Tadić Appeal Judgement, paras 221‑223, referring to Convention for the Suppression of Terrorist Bombings [International Convention for the Suppression of Terrorist Bombing, U.N. Doc. A/RES/52/164; 37 ILM 249 (1998); 2149 UNTS 284, entered into force 23 May 2001]], art. 2(3)(c), ICC Statute [Statute of the International Criminal Court, adopted by a Diplomatic Conference in Rome on 17 July 1998]], art. 25(3). See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 355-363.
 Tadić Appeal Judgement, paras 194‑226. See Đorđević Appeal Judgement, para. 81; Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004 [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004]], paras 10, 17, referring to Tadić Appeal Judgement, paras 188, 193.
 See Stanišić Appeal Brief, paras 356-358, 361-366.
 Popović et al. Appeal Judgement, para. 1672, referring to Đorđević Appeal Judgement, para. 81; Martić Appeal Judgement, para. 80; Brđanin Appeal Judgement, para. 405. See Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004, paras 14-25. In this regard, the Appeals Chamber also recalls that “it is not required to demonstrate that every possible combination between crime and mode of liability be explicitly allowed by, or have precedents in, customary international law” (Đorđević Appeal Judgement, para. 81 (emphasis omitted)).