Stare decisis

Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

92. The Appeals Chamber adopts the findings of ICTY Appeals Chamber in the Aleksovski case[1] and recalls that in the interests of legal certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. […]

[1] Case No. IT-95-14/1-A, The Prosecutor v. Zlatko Aleksovski, "Decision", Appeals Chamber, 24 March 2000, paras. 107-109: "The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice [para. 107]. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law’ [para. 108]. 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" [para. 109].

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

101. The fundamental purpose of the Tribunal is the prosecution of persons responsible for serious violations of international humanitarian law.[1]  The Appeals Chamber considers that this purpose is best served by an approach which, while recognising the need for certainty, stability and predictability in criminal law, also recognises that there may be instances in which the strict, absolute application of that principle may lead to injustice.

102. The principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases. […]

107. The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.

108. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law.”[2]

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.

110. What is followed in previous decisions is the legal principle (ratio decidendi), and the obligation to follow that principle only applies in similar cases, or substantially similar cases.  This means less that the facts are similar or substantially similar, than that the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision.  There is no obligation to follow previous decisions which may be distinguished for one reason or another from the case before the court.

111. Where, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.

See also paras. 102-106.

[1] See Article 1 of the Statute.

[2] Black’s Law Dictionary (7th ed., 1999).

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

104. The right of appeal is a component of the fair trial requirement[1] set out in Article 14 of the ICCPR, and Article 21(4) of the Statute. The right to a fair trial is, of course, a requirement of customary international law.[2]

105. An aspect of the fair trial requirement is the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way and decided as Judge Tanaka said, “possibly by the same reasoning.”[3]

106. The right to a fair trial requires and ensures the correction of errors made at trial.  At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered. 

[1] Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (1993) comments that the bundle of rights which constitute the right to a fair trial are those set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights 1966 (“ICCPR”) (ibid., Article 14, para. 19).

[2] See Article 6 of the 1949 European Convention on Human Rights, Article 8 of the 1969 American Convention on Human Rights and Article 7 of the 1981 African Charter on Human and People’s Rights.

[3] See footnote 243, Judge Tanaka’s Separate Opinion.

Download full document
ICTR Statute Article 20(4) ICTY Statute Article 21(4) Other instruments International Covenant on Civil and Political Rights: Article 14.
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

126. The Defence argument on the principle of legality or nullum crimen sine lege, is based on a misunderstanding of that principle.  The Appeals Chamber understands the Defence to be saying that reliance cannot be placed on a previous decision as a statement of the law, since that decision would necessarily have been made after the commission of the crimes, and for that reason would not meet the requirements of the principle of legality.  There is nothing in that principle that prohibits the interpretation of the law through decisions of a court and the reliance on those decisions in subsequent cases in appropriate circumstances.  The principle of legality is reflected in Article 15 of the ICCPR.[1]  What this principle requires is that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission. […]

127. There is, therefore, no breach of the principle of nullum crimen sine lege.  That principle does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime; nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime.

 

[1] Article 15 of the ICCPR states in relevant part: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

Download full document
Other instruments International Covenant on Civil and Political Rights: Article 15.
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

113. The Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers for the following reasons:

(i) the Statute establishes a hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact arising from decisions of the Trial Chambers.  Under Article 25, the Appeals Chamber hears an appeal on the ground of an error on a question of law invalidating a Trial Chamber’s decision or on the ground of an error of fact which has occasioned a miscarriage of justice, and its decisions are final;

(ii) the fundamental mandate of the Tribunal to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law; and

(iii) the right of appeal is, as the Chamber has stated before,[1] a component of the fair trial requirement, which is itself a rule of customary international law and gives rise to the right of the accused to have like cases treated alike.  This will not be achieved if each Trial Chamber is free to disregard decisions of law made by the Appeals Chamber, and to decide the law as it sees fit.  In such a system, it would be possible to have four statements of the law from the Tribunal on a single legal issue - one from the Appeals Chamber and one from each of the three Trial Chambers, as though the Security Council had established not a single, but four, tribunals.  This would be inconsistent with the intention of the Security Council, which, from a plain reading of the Statute and the Report of the Secretary-General, envisaged a tribunal comprising three trial chambers and one appeals chamber, applying a single, unified, coherent and rational corpus of law.  The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more pronounced.

[1] See para. 104, supra.

Download full document
ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

114. The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

576. [T]he Trial Chamber is said by Landžo to have violated the principles of certainty in the criminal law,[1] and of nullum crimen sine lege,[2] or ex post facto law (as it was described by counsel for Landžo).[3]  These objections are misconceived.  The law to be applied must be that which existed at the time the acts upon which the charges are based took place.  However, the subsequent identification or interpretation of that law by the Tribunal, whenever that takes place, does not alter the law so as to offend either of those principles.[4]

[1]    Landžo Brief, pp 88-89.

[2]    Restated in Article 15 of the International Covenant on Civil and Political Rights, 1966: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

[3]    Appeal Transcript, pp 590, 595, 627.

[4]    Aleksovski Appeal Judgement, paras 126-127, 135.

Download full document
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

15. […] while not bound by the jurisprudence of the ICTR or the ICTY, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTR or the ICTY Appeals Chambers and depart from them only for cogent reasons in the interests of justice.

Download full document
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

116. The Appeals Chamber recalls that decisions on taking judicial notice of adjudicated facts fall within the discretion of trial chambers.[1] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

117. Rule 94(B) of the ICTY Rules provides that, at the request of a party or proprio motu, a trial chamber, after hearing the parties, may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the ICTY relating to the matter at issue. Adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding”.[3] Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of an accused.[4]

118. It is not disputed that the practice of taking judicial notice of adjudicated facts is well-established in the jurisprudence of the ICTY and the ICTR,[5] and it is accepted as a method of achieving judicial economy while ensuring the right of an accused to a fair and expeditious trial.[6] In this respect, a number of procedural safeguards are set out in the jurisprudence,[7] which are intended to ensure that trial chambers exercise their discretion cautiously and in accordance with the rights of the accused, including the right to be presumed innocent until proven guilty pursuant to Article 21(3) of the ICTY Statute.[8]

119. […] Karadžić challenges the “constitutionality” of the practice of taking judicial notice of adjudicated facts, notwithstanding the express provision for it in the ICTY Rules.[9] The Appeals Chamber recalls that, where the respective Rules or Statute of the ICTY are at issue, it is bound to consider the relevant precedent when interpreting them.[10] This Appeals Chamber is presently being called upon to assess the propriety of decisions taken by an ICTY trial chamber, that was bound by the ICTY Rules and the ICTY Statute as well as by decisions of the ICTY Appeals Chamber.[11] Bearing this context in mind, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTY and the ICTR Appeals Chambers and depart from them only where cogent reasons in the interests of justice exist, that is, where a previous decision has been decided on the basis of a wrong legal principle or has been “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[12] Therefore, in order to succeed on appeal, Karadžić must demonstrate that there are cogent reasons in the interests of justice that justify departure from jurisprudence on judicial notice of adjudicated facts.

120. The Appeals Chambers of the ICTY and the ICTR have consistently held that judicial notice of adjudicated facts is merely a presumption that may be rebutted by defence evidence at trial.[13] Judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” but only relieves the Prosecution of the initial burden to produce evidence on the given point.[14]

121. The Appeals Chamber notes that the concern that accused in other cases may have focused their defence on arguing that they were not responsible for the perpetrators of crimes rather than on contesting the existence of crimes is one of the reasons why judicial notice may not be taken of adjudicated facts from other cases relating to the acts, conduct, and mental state of the accused.[15] It is, nevertheless, permissible to take judicial notice of adjudicated facts relating directly or indirectly to an accused’s guilt,[16] for example, of facts relating to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible.[17] This is as long as the burden remains on the Prosecution to establish the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question by evidence other than judicial notice.[18] In addition, the discretion to accept adjudicated facts is limited by the need to ensure the accused’s right to a fair and expeditious trial.[19] Apart from disagreeing with the case law, Karadžić fails to demonstrate that there are cogent reasons in the interests of justice to depart from consistent jurisprudence of the ICTR and the ICTY on this matter.

122. The Appeals Chamber does not consider that by taking judicial notice of the existence of a crime committed by Karadžić’s alleged subordinates,[20] for example, the Trial Chamber relieved the Prosecution from proving the actus reus of the crimes charged in the Indictment. The Appeals Chamber recalls that there is a distinction between facts related to the conduct of physical perpetrators of a crime for which an accused is being alleged criminally responsible through another mode of liability and those related to the acts and conduct of the accused himself.[21] The burden remained on the Prosecution to establish by evidence other than judicial notice that Karadžić possessed the relevant mens rea and engaged in the required actus reus to be held responsible for the crimes established by way of judicial notice of adjudicated facts.  

123. Finally, the Appeals Chamber finds without merit Karadžić’s submission that judicial notice of adjudicated facts deprives an accused of the possibility that a trial chamber would reach a different conclusion had it heard the evidence itself. The Appeals Chamber recalls that adjudicated facts are not accepted as conclusive in proceedings involving parties who did not have the chance to contest them,[22] and, as noted above, are merely presumptions that may be rebutted with evidence at trial.[23]

[…]

219. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the ICTY Rules is a method of achieving judicial economy while ensuring the right of the accused to a fair, public, and expeditious trial.[24] Rule 94(B) of the ICTY Rules requires a trial chamber to hear the parties before deciding to take judicial notice.[25] Moreover, facts admitted under Rule 94(B) of the ICTY Rules are merely presumptions that may be rebutted by the defence with evidence at trial.[26] Consequently, judicial notice of adjudicated facts does not shift the ultimate burden of proof or persuasion, which remains squarely on the Prosecution.[27]

220. […] The fact that the Trial Chamber took judicial notice of considerably more adjudicated facts than in other cases does not, in itself, render the trial unfair as long as the Trial Chamber followed the procedure provided for in the ICTY Rules. In this respect, Karadžić’s comparison of the number of judicially noticed adjudicated facts in his case with other cases fails to account for factors such as the unprecedented scope and size of his own trial in relation to others.

See also paras. 221, 222.

[1] [Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.1, Decision on Ratko Mladić’s Appeal Against the Trial Chamber’s Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 12 November 2013 (“Mladić Decision of 12 November 2013”)], para. 9; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007 (“Dragomir Milošević Decision of 26 June 2007”), para. 5.

[2] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

[3] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010 (“Bagosora et al. Decision of 29 October 2010”), para. 7; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Decision of 16 June 2006”), para. 40.

[4] Mladić Decision of 12 November 2013, para. 25; Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 50.

[5] See generally Bagosora et al. Decision of 29 October 2010; Dragomir Milošević Decision of 26 June 2007; Karemera et al. Decision of 16 June 2006. See also, e.g., Tolimir Appeal Judgement, paras. 23-26, 30-36; Popović et al. Appeal Judgement, paras. 622, 623.

[6] Tolimir Appeal Judgement, para. 23; Mladić Decision of 12 November 2013, para. 24; Karemera et al. Decision of 16 June 2006, para. 39.

[7] Mladić Decision of 12 November 2013, para. 25 (“[a] trial chamber must first determine whether a proposed adjudicated fact meets the admissibility criteria for judicial notice, and then consider whether, even if all admissibility criteria are met, it should nonetheless decline to take judicial notice on the ground that doing so would not serve the interests of justice […]. To be admissible, proposed adjudicated facts must [inter alia] not differ in any substantial way from the formulation of the original judgement; […] not be unclear or misleading in the context in which they are placed in the moving party’s motion; […] not contain characterisations of an essentially legal nature; […] not be based on an agreement between the parties to the original proceedings; […] not relate to the acts, conduct, or mental state of the accused; and […] not be subject to pending appeal or review.”); Bagosora et al. Decision of 29 October 2010, paras. 10 (“[…] facts shall not be deemed ‘adjudicated’ if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings”), 11, 12 (“[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”).

[8] Mladić Decision of 12 November 2013, para. 24; Karemera et al. Decision of 16 June 2006, paras. 47, 52.

[9] Karadžić Appeal Brief, paras. 116, 134; T. 23 April 2018 p. 108.

[10] See [Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”)], para. 6.

[11] See Aleksovski Appeal Judgement, paras. 112, 113.

[12] Šešelj Appeal Judgement, para. 11; Stanišić and Župljanin Appeal Judgement, para. 968; Bizimungu Appeal Judgement, para. 370; Đorđević Appeal Judgement, para. 23; Galić Appeal Judgement, para. 117; Rutaganda Appeal Judgement, para. 26; Aleksovski Appeal Judgement, para. 107. Cf. Munyarugarama Decision of 5 October 2012, para. 5 (noting the “normative continuity” between the Mechanism’s Rules and Statute and the ICTY Rules and the ICTY Statute and that the “parallels are not simply a matter of convenience or efficiency but serve to uphold principles of due process and fundamental fairness, which are the cornerstones of international justice”).

[13] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[14] Tolimir Appeal Judgement, para. 24; Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[15] Mladić Decision of 12 November 2013, para. 80, referring to Karemera et al. Decision of 16 June 2006, para. 51.

[16] Mladić Decision of 12 November 2013, para. 81; Karemera et al. Decision of 16 June 2006, paras. 48, 53.

[17] Mladić Decision of 12 November 2013, para. 81; Karemera et al. Decision of 16 June 2006, paras. 52, 53.

[18] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, paras. 49, 52. See also Mladić Decision of 12 November 2013, para. 81.

[19] Karemera et al. Decision of 16 June 2006, paras. 41, 51, 52.

[20] See Karadžić Appeal Brief, para. 128.

[21] Karemera et al. Decision of 16 June 2006, para. 52.

[22] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, paras. 40, 42.

[23] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[24] Mladić Decision of 12 November 2013, para. 24. See also Setako Appeal Judgement, para. 200; Karemera et al. Decision of 16 June 2006, para. 39.

[25] Setako Appeal Judgement, para. 200.

[26] See Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[27] See Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

Download full document
ICTY Statute Article 21(3) ICTY Rule Rule 94(B)
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

433. […] For liability under the third form of joint criminal enterprise, it is required that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and to participate in a common plan aimed at their commission, as well as that it was foreseeable to him or her that a crime falling outside the common purpose might be perpetrated by any other member of the joint criminal enterprise, or one or more of the persons used by the accused or other members of the joint criminal enterprise to further the common purpose, and that the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[1] The Appeals Chamber recalls that the ICTY Appeals Chamber has consistently declined to apply a standard requiring foreseeability that the crime falling outside the common criminal purpose would “probably” be committed for liability under the third form of joint criminal enterprise to attach but recognized instead that the possibility that a crime could be committed must be sufficiently substantial.[2] The Appeals Chamber also reiterates that, although not bound by decisions of the ICTY and the ICTR Appeals Chambers, in the interests of legal certainty, it should follow such previous decisions and depart from them only for cogent reasons in the interests of justice.[3] This would be the case where the previous decision was decided on the basis of a wrong legal principle or was given per incuriam, that is, it was wrongly decided, usually because the judges were not well-informed about the applicable law.[4]

434. The Appeals Chamber observes that it is not bound by the findings of other courts – domestic, international, or hybrid – or by the extrajudicial writings, separate or dissenting opinions of its Judges, or by views expressed in academic literature.[5] On review of the judgement in [R v. Jogee; Ruddock v. The Queen (“Jogee”)], the Appeals Chamber does not find any cogent reason for departing from the Appeals Chamber’s well-established jurisprudence. The Supreme Court of the United Kingdom and Judicial Committee of the Privy Council in Jogee changed the mens rea applicable in England and Wales and the jurisdictions bound by the jurisprudence of the Privy Council for accessorial liability resulting from participation in a joint enterprise.[6] However, the form of individual criminal responsibility under the third type of joint criminal enterprise is “commission”, resulting in liability as a perpetrator, not as an accessory.[7] In this sense, Jogee is not directly on point. […]

 435. In addition, the Appeals Chamber does not find persuasive arguments that the shift in the law of England and Wales on this point warrants reconsideration and possible reversal of established appellate jurisprudence of the ICTY. Although the common law notion of liability due to participation in a joint enterprise may have been influential in the development of ICTY case law, Karadžić’s argument that the relevant principles in ICTY jurisprudence were derived from English law is not accurate. The ICTY Appeals Chamber in the Tadić case extensively examined a series of post-World War II cases from various domestic jurisdictions concerning war crimes and concluded that the relevant actus reus and mens rea for liability under the three forms of joint criminal enterprise were firmly established in customary international law.[8] With regard to the mens rea standard for the third form of joint criminal enterprise, it found that customary international law required that: (i) the accused could foresee that the crime not agreed upon in the common plan “might be perpetrated” by one or other members of the group; and (ii) the accused willingly took that risk.[9] It also clarified that, what was required was intent to pursue the common plan in addition to “foresight that those crimes outside the criminal common purpose were likely to be committed”.[10] Thus, while the ICTY Appeals Chamber in Tadić considered domestic case law in determining customary international law,[11] contrary to Karadžić’s claim, it found that the relevant principles were derived from customary international law, not the law of England and Wales.[12] A shift in the law of England and Wales and the jurisdictions bound by the Privy Council on this point therefore does not per se warrant the reversal of established appellate jurisprudence.

436. The ICTY Appeals Chamber in Tadić also assessed whether domestic legislation or case law could be relied upon as a source of international principles or rules under the doctrine of general principles of law recognized by the major legal systems of the world.[13] Its survey led it to conclude that, although the common purpose doctrine “was rooted in the national law of many States”, major domestic jurisdictions did not adopt a common approach with regard to the third form of joint criminal enterprise and that therefore “national legislation and case law cannot be relied upon as a source of international principles or rules” in this context.[14] The shift in the law in Jogee, which has not been followed in other common law jurisdictions,[15] confirms rather than undermines the conclusion in Tadić that different approaches at a domestic level reflect that domestic case law, in such circumstances, cannot be relied upon as a source of international principles.[16] The Appeals Chamber finds that the shift in Jogee does not provide a sufficient basis to revisit Tadić or the relevant mens rea standard as applied in established case law.

[1] Stanišić and Župljanin Appeal Judgement, para. 958; Karemera and Ngirumpatse Appeal Judgement, para. 634; Šainović et al. Appeal Judgement, para. 1557; Ntakirutimana Appeal Judgement, para. 467.

[2] Prlić et al. Appeal Judgement, para. 3022; Popović et al. Appeal Judgement, para. 1432; Šainović et al. Appeal Judgement, paras. 1061, 1272, 1525, 1557, 1558; [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], para. 18. The ICTR Appeals Chamber has held that the ICTY jurisprudence on the third form of joint criminal enterprise should be applied to the interpretation of the principles on individual criminal responsibility under the ICTR Statute. See Ntakirutimana Appeal Judgement, para. 468. See also Karemera and Ngirumpatse Appeal Judgement, para. 634.

[3] See [Karadžić Appeal Judgement] paras. 13, 119.

[4] Stanišić and Župljanin Appeal Judgement, para. 968.

[5] Stanišić and Župljanin Appeal Judgement, paras. 598, 974, 975; Popović et al. Appeal Judgement, paras. 1437-1443, 1674; Đorđević Appeal Judgement, paras. 33, 38, 39, 50-53, 83; Čelebići Appeal Judgement, para. 24.

[6] This joint case involved two separate appellants who had been convicted of murder on the basis of “parasitic accessory liability”, after a co-defendant had killed the victim. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3. In the case of Jogee, he had been vocally encouraging the principal who subsequently stabbed the victim to death. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, para. 102. The judge directed the jury that Jogee was guilty of murder if he took part in the attack by encouraging the principal and realised that it was possible that his co-defendant might use the knife with intent to cause serious harm. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3, 104. In the case of Ruddock, liability was based on his participation in a robbery during which the principal cut the victim’s throat. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 108, 109. The judge directed the jury that the prosecution had to prove a common intention to commit the robbery which included a situation in which Ruddock knew that there was a possibility that the principal might intend to kill the victim. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3, 114. The Supreme Court unanimously set the appellants’ convictions aside and corrected the common law on “parasitic accessory liability” by holding that the proper mental element for establishing such liability is intent to assist or encourage and that foresight is simply evidence of such intent. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 79, 83, 87, 89, 90, 98, 99.

[7] Šainović et al. Appeal Judgement, para. 1260; Krajišnik Appeal Judgement, para. 662; Kvočka et al. Appeal Judgement, paras. 79, 80; Vasiljević Appeal Judgement, para. 102.

[8] Tadić Appeal Judgement, paras. 194-226.

[9] Tadić Appeal Judgement, para. 228.

[10] Tadić Appeal Judgement, para. 229.

[11] Tadić Appeal Judgement, paras. 194-226.

[12] See also Tadić Appeal Judgement, paras. 225, 226.

[13] Tadić Appeal Judgement, para. 225.

[14] Tadić Appeal Judgement, para. 225.

[15] See HKSAR v. Chan Kam-Shing [2016] HKCFA 87, paras. 32, 33, 40, 58, 60, 62, 71, 98; Miller v. The Queen, Smith v. The Queen, Presley v. The Director of Public Prosecutions [2016] HCA 30, para. 43.

[16] Tadić Appeal Judgement, para. 225 (“in the area under discussion [concerning the third form of joint criminal enterprise], national legislation and case law cannot be relied upon as a source of international principles or rules, under the doctrine of the general principles of law recognised by the nations of the world: for this reliance to be permissible, it would be necessary to show that most, if not all, countries adopt the same notion of common purpose. More specifically, it would be necessary to show that, in any case, the major legal systems of the world take the same approach to this notion. The above survey shows that this is not the case.”).

Download full document