Scope of the common objective (original and expanded crimes)
|Appeal Judgement - 17.03.2009||
The Trial Chamber found that deportation, forcible transfer and persecution based thereon, were the original crimes of the common objective of the JCE 1. It further held that other, expanded crimes were added to the JCE, after leading members of the JCE became aware of them, accepted them and came to intend them. The Appeals Chamber was not satisfied, however, that the Trial Chamber found that Krajišnik incurred liability under JCE 3 for the first commissions of these expanded crimes.
167. The Appeals Chamber first notes that, in the Indictment, the Prosecution pled Krajišnik’s liability pursuant to JCE Category 1 and alternatively, pursuant to JCE Category 3. However, the Appeals Chamber is not persuaded by the submission that the Trial Chamber found that Krajišnik incurred responsibility pursuant to JCE Category 3. First, although the Trial Chamber raised the question of whether Krajišnik incurred liability under JCE Category 3 for some of the crimes, it never returned to answer that question. Instead, it focused its analysis on whether the expanded crimes became incorporated into the common objective, thereby resulting in responsibility for Krajišnik under JCE Category 1 once they had been incorporated. Had the Trial Chamber intended to find Krajišnik liable for the expanded crimes under JCE Category 3 before they had become part of the common objective, it would, at the very least, have made some distinction between the first commissions of the expanded crimes (when they were not yet part of the common objective) and their commission after they had become part of the common objective. However, the Trial Chamber made no such distinction. This indicates that the Trial Chamber found Krajišnik responsible under JCE Category 1 alone, and not under JCE Category 3.
168. Likewise, the other findings of the Trial Chamber invoked by the Prosecution do not reveal that it found Krajišnik criminally responsible under JCE Category 3. The Trial Chamber found that “even before the Bosnian-Serb take-overs began in April 1992, the Accused and Radovan Karadžić were aware that an armed conflict between the ethnic groups would have devastating consequences”. This finding falls short, however, of demonstrating Krajišnik’s mens rea for JCE Category 3. Similarly, the Trial Chamber’s finding that “the Accused’s criminal responsibility arises with the attack and crimes committed in Bijeljina municipality in the beginning of April 1992” does not show that the commission of expanded crimes was a natural and foreseeable consequence of the common objective. Its broad, summary finding in paragraph 1119 of the Trial Judgement that Krajišnik “had the mens rea required for the commission of the crimes which the Chamber, in part 5 of this judgement, has found were committed” does not address whether and when his liability arose under JCE Category 1 or JCE Category 3. The preceding paragraphs 1110 to 1118 of the Trial Judgement do not clarify the matter, as they only generally describe how JCE members became aware of the commission of the expanded crimes “during the course of the indictment period”. The Trial Chamber also found that “[t]ake-overs, killings, detention, abuse, expulsions, and appropriation and destruction of property […] were launched in early April 1992, and were repeated throughout the claimed territories in the months to come. This was the Bosnian-Serb leadership’s goal”. However, this finding was made in the context of rejecting the Prosecution’s interpretation of the “Six Strategic Goals”, and before the Trial Chamber had even reached the question of whether Krajišnik incurred liability pursuant to JCE Category 3.
169. Thus, having considered the Trial Judgement as a whole, the Appeals Chamber is not satisfied that the Trial Chamber made a finding that Krajišnik incurred criminal liability under JCE Category 3 for the first commissions of the expanded crimes, that is, before they became part of the common objective. Instead, the Trial Chamber only held Krajišnik responsible under JCE Category 1 for their subsequent commissions, that is, once they had become part of the JCE.
Furthermore, the Trial Chamber made insufficient findings as to when the expanded crimes became incorporated into the common objective. Hence, Krajišnik’s convictions for all expanded crimes were quashed.
171. The Appeals Chamber notes that in order to impute responsibility to leading JCE members, including Krajišnik, for the expanded crimes, the Trial Chamber was therefore required to make findings as to (1) whether leading members of the JCE were informed of the crimes, (2) whether they did nothing to prevent their recurrence and persisted in the implementation of this expansion of the common objective, and (3) when the expanded crimes became incorporated into the common objective. It is apparent that the Trial Chamber only made scarce findings in relation to each of these requirements.
172. The Appeals Chamber first notes that the Trial Judgement’s section on the common objective offers only a few “illustrative” factual findings on when “leading JCE members” – a term nowhere defined in the Trial Judgement – became “aware” of the commission of expanded crimes. Furthermore, the Trial Chamber did not make any findings in accordance with its prior statement that in order for expanded crimes to be included in the common objective, “leading JCE members” not only had to be informed of them but, additionally, took no effective measures to prevent their recurrence, and persist in the implementation of the common objective, thereby coming to intend these expanded crimes.
173. Even more significantly, while the Trial Chamber characterised “the common objective [of the JCE] as fluid in its criminal means”, it did not explicitly find at which specific point in time the expanded crimes became part of the common plan and whether the JCE members had any intent in respect thereof. For instance, the Trial Chamber stated that the murder of civilians “was soon incorporated as an intended crime”, that the Bosnian-Serb leadership “very soon came not only to accept killings […] but also to encourage them”, and that the “appropriation of property […] had become a means of forcible ethnic recomposition”. The Trial Chamber only generally found that these crimes “came to redefine the criminal means of the JCE’s common objective during the course of the indictment period.” Similarly, in those instances where the Trial Chamber referred to a particular month in which leading JCE members became aware of the commission of expanded crimes, it did not specify the date when this happened or whether Krajišnik was among the leading JCE members who gained such awareness, let alone when leading JCE members went from being merely aware of the crime to intending it.
174. Furthermore, with respect to the “local component” of the JCE, the Trial Chamber did not make any findings when members of this group became aware of the expanded crimes. Consequently, the Trial Chamber did not find at what point in time the expanded crimes became incorporated in the common objective through the involvement of the members of the local component of the JCE.
175. In light of these scarce – or entirely absent – findings, the Appeals Chamber is not able to conclude with the necessary preciseness how and at which point in time the common objective of the JCE expanded to include other crimes that originally were not included in it, and, consequently, on what basis the Trial Chamber imputed those expanded crimes to Krajišnik.
176. Neither the Appeals Chamber nor the Parties can be required to engage in speculation on the meaning of the Trial Chamber’s findings – or lack thereof – in relation to such a central element of Krajišnik’s individual criminal responsibility as the scope of the common objective of the JCE. Aside from merely stating that the common objective was “fluid”, the Trial Chamber was required to precisely find how and when the scope of the common objective broadened in order to impute individual criminal responsibility to Krajišnik for those crimes that were not included in the original plan, i.e the expanded crimes.
177. In conclusion, the Appeals Chamber finds that the Trial Chamber committed a legal error in failing to make the findings necessary for Krajišnik’s conviction in relation to the following expanded crimes, which were not included in the original common objective of the JCE.
 Indictment, para. 5.
 Trial Judgement, para. 1096.
 Trial Judgement, paras 1100-1117.
 Trial Judgement, para. 1098: “With acceptance of the actual commission of new types of crimes and continued contribution to the objective, comes intent, meaning that subsequent commission of such crimes by the JCE will give rise to liability under JCE form 1.” (emphasis added).
 Trial Judgement, para. 1099.
 Trial Judgement, para. 1124.
 Trial Judgement, para. 1119.
 Trial Judgement, para. 1118. For instance, the Trial Chamber found that JCE members became aware of extermination and killings in detention as late as August 1992 and November 1992, respectively (ibid., paras 1104 and 1109, respectively).
 Trial Judgement, paras 1089-1119.
 Trial Judgement, para. 1100 (fn. 2223).
 The Trial Chamber apparently did make a distinction between a “Pale-based leadership component” of the JCE (para. 1087) and a “local component” (para. 1088) but it is unclear whether the term “leading JCE members” (para. 1098) accords with either of these two groups.
 See e.g. paras 1108 (murder of civilians outside detention); 1109 (extermination), 1111 (plunder and appropriation of property), 1114 (destruction of cultural monuments and sacred sites).
 Trial Judgement, para. 1098.
 Trial Judgement, para. 1108 (emphasis added).
 Trial Judgement, para. 1113 (emphasis added).
 Trial Judgement, para. 1118 (emphasis added).
 See Trial Judgement, para. 1088.
 Trial Judgement, para. 1098.
 As to the effect of this legal error, see infraIII.C.11.