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Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

29. The wanton destruction of cities, towns or villages, an offence articulated in Article 3(b) of the Statute, reflects the customary international law prohibition on unlawful attacks against civilian objects which is found in conventional and customary international law applying to situations of international and non-international armed conflicts. Because this conduct is prohibited in customary international law that applies in international and non-international armed conflict, the proof of occupied territory is not required. The elements of this offence have been enunciated in several cases before the Trial Chambers, but none has considered the international nature of the armed conflict to be an element.[1] Devastation not justified by military necessity, an offence articulated in Article 3(b) of the Statute, includes the customary international law prohibition that destruction of the property of an adversary is prohibited, unless required by imperative military necessity. This rule applies in international and non-international armed conflict.[2]

30. The Appeals Chamber is satisfied that the conventional prohibition on attacks on civilian objects in non-international armed conflicts has attained the status of customary international law and that this covers “wanton destruction of cities, towns or villages not justified by military necessity” in international and non-international armed conflict. The Appeals Chamber is further satisfied that violations of this provision entail, in customary international law, the individual criminal responsibility of the person breaching the rule. The ICRC notes that this prohibition is contained in numerous military manuals that are applicable in or have been applied in international and non-international armed conflict,[3] and numerous states have adopted legislation making it an offence to attack civilian objects during any armed conflict.[4]

See also paras 26-28 where the Appeals Chamber discusses legal sources including those referred to in the impugned Trial Chamber decision.

[1]           See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14-T, Judgement, 26 February 2001 […], para. 346 (holding the elements to be: (i) the destruction of property occurs on a large scale, (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction); affirmed, Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgement, 17 December 2004, […], paras. 74-76.

[2]           This is a long-standing rule of international armed conflict. See Hague Regulations Article 23(g) (“In addition to the prohibitions provided by special Conventions, it is especially forbidden... [t]o destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”). The ICRC study on customary international humanitarian law notes that “[t]his rule is included in military manuals which are applicable in or have been applied in non-international armed conflicts.” Jean-Marie Henckaerts and Louise Doswald-Beck (eds), ICRC Customary International Humanitarian Law, (Cambridge, 2005) (“ICRC Customary International Humanitarian Law”), vol. 1, page 28. There is an absolute prohibition on directing attacks against civilian objects, which may not be derogated from because of military necessity. See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Corrigendum to Judgement of 17 December 2004, page 2.

[3]           ICRC Customary International Humanitarian Law, vol. 1. pages 26 nn. 6-8, 28 nn. 21-22, 176 nn. 25-26, 177 nn. 30-31.

[4]           Ibid., page 28.

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ICTY Statute Article 3(b)
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

37. […] The Appeals Chamber therefore finds that the customary international law rule embodied in Article 3(e) is applicable in all situations of armed conflict [international and non-international], and is not limited to occupied territory.[1]

38. The Appeals Chamber is satisfied that violations of the prohibition against “plunder of public or private property” under Rule 3(e) entail, under customary law, the individual criminal responsibility of the person breaching the rule. […]

See also the omitted portions of paras 37-38 where the Appeals Chamber discusses legal sources.

[1]           Kordić Appeals Judgement, para. 78 (“[t]he prohibition of plunder is general in its application and not limited to occupied territories only”).

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ICTY Statute Article 3(e)
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

44. The Appeals Chamber is satisfied that the ruling of the Trial Chamber was correct with respect to its holding that Article 3(d) jurisdiction encompasses violations of the customary international law that provides protection for cultural property in both situations of international as well as non-international armed conflict. […]

[…]

46. […] Article 3(d) applies in both situations of armed conflict [international and non-international]. Further, the norm embodied in Article 3(d) is not limited to occupied territory because the relevant customary international law applies in non-international armed conflict. […]

See also para. 45 and the omitted portions of paras 44, 46 where the Appeals Chamber discusses legal sources.

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ICTY Statute Article 3(d)
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

47. The Appeals Chamber in the Tadić Jurisdiction Appeal found that the Article 3(d) prohibition against destruction or wilful damage to institutions dedicated to religion applied to both non-international and international armed conflict.[1] This Appeals Chamber affirms that conclusion.

48. The Appeals Chamber is satisfied that violations of the prohibition against “destruction or wilful damage done to institutions dedicated to religion” under Rule 3(d) entails, under customary law, the individual criminal responsibility of the person breaching the rule. […]

See also the omitted portions of para. 48 where the Appeals Chamber discusses legal sources.

[1]           Tadić Jurisdiction Decision, para. 86 (noting “this provision is based on the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, the Regulations annexed to that Convention, and the Nuremberg Tribunal's interpretation of those Regulations”); ibid., para. 87 (stating “the Hague Convention [is] considered qua customary law” applicable to international armed conflict); ibid., para. 98 (noting one rule of customary international law that applies to non-international armed conflict is Article 19 of the [1954] Hague Convention, which states that “[i]n the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property”, where respect for cultural property includes protection and safeguarding of “immovable property of great importance to the cultural heritage of every people, such as monuments of architecture... whether religious or secular”. See Articles 1, 2, 3, 4, and 19 1954 Hague Convention); ibid., para. 127 (noting the protection of cultural property as one of the “customary rules [that] have developed to govern internal strife”).

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ICTY Statute Article 3(d)
Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

41. […] The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective.

42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.[1]

[1] See, e.g., Prosecutor v. Stanišić, Case No. IT-03-69-PT, Decision on Defence Preliminary Motions, 14 November 2003, p. 5; Prosecutor v. Meakić et al., Case No. IT-02-65-PT, Decision on Duško Kne‘ević’s Preliminary Motion on the Form of the Indictment, 4 April 2003, p. 6; Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Prosecution’s Motion for Leave To Amend the Consolidated Indictment, 4 March 2002, para. 13.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
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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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

89. The Appeals Chamber notes that in the Vasiljević Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting:

(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. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.[1]

90. Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.

91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself.[2] Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.[3]

[1] Vasiljević Appeal Judgement para. 102; see also Tadić Appeal Judgement, para. 229; Krnojelac Appeal Judgement paras 31-33.

[2] Prosecutor v. Milutinović et al., Case No.: IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise, 21 May 2003, para. 20.

[3] Vasiljević Appeal Judgement, para. 102; Krnojelac Appeal Judgement, para. 75 (“[T]he acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent.”)

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

96. The Appeals Chamber has explained the actus reus of the participant in a joint criminal enterprise as follows:

First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose.[1]

97. The Appeals Chamber notes that, in general, there is no specific legal requirement that the accused make a substantial contribution to the joint criminal enterprise. However, there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the joint criminal enterprise.[2] In practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose..

See also paras 188 and 599:

188. The Appeals Chamber recalls however that the significance and scope of the material participation of an individual in a joint criminal enterprise may be relevant in determining whether that individual had the requisite mens rea.[3] The extent of the material participation is also a decisive factor when assessing the responsibility of an individual for aiding and abetting the crimes committed by the plurality of persons involved in the joint criminal enterprise. As stated in the Tribunal’s case-law, the aider and abettor must make a substantial contribution to the crime in order to be held responsible.[4]

599. […] The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required,[5] but finds that, in the present case of “opportunistic visitors”, a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine.

[1] Vasiljević Appeal Judgement, para. 100 (footnotes omitted).

[2] See e. g. below, para. 599 (the case of “opportunistic visitors” who enter the camp to commit crimes).

[3] Ibid. [See above, para. 97.]

[4] Ibid., paras 89-90.

[5]Appeal Judgement, para. 97.

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

99. Appellant Kvočka appears to argue that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable.[1] The Appeals Chamber disagrees. A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadić Appeals Chamber explained, “[a]lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question.”[2] This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case.

[1] Kvočka Appeal Brief, para. 162 (“[T]he action has to be part of co-perpetration of some offense and also give its contribution to co-perpetration in the great extent”).

[2] Tadić Appeal Judgement para. 191; see also para. 192: “Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility”.

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

101. The Appeals Chamber affirms that the de facto or de jure position of employment within the camp is only one of the contextual factors to be considered by the Trial Chamber in determining whether an accused participated in the common purpose. A position of authority, however, may be relevant evidence for establishing the accused’s awareness of the system, his participation in enforcing or perpetuating the common criminal purpose of the system, and, eventually, for evaluating his level of participation for sentencing purposes.[1]

103. The Appeals Chamber notes that in assessing the level of contribution to a joint criminal enterprise which can be inferred from positions held in a camp, the Trial Chamber reviewed some of the post-World War II jurisprudence. Upon review, the Trial Chamber held that:

The concentration camp cases seemingly establish a rebuttable presumption that holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein. An intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp’s functioning.[2]

The Appeals Chamber finds that the Trial Chamber did not err in its discussion of these early cases. As it is clear that there is no requirement of “membership” in a group, beyond playing a role in a camp, in order to incur joint criminal enterprise responsibility, Appellant Prcać’s submission is rejected.

104. In another related argument, Appellant Radić submits that he should not be found guilty as a co-perpetrator since the Trial Chamber acquitted him of all charges based on superior responsibility.[3] The suggestion implicit in this argument is that a person lacking sufficient authority to be considered a superior would necessarily also lack sufficient authority to make a “significant contribution” to a systemic joint criminal enterprise. The Appeals Chamber notes that participation in a joint criminal enterprise pursuant to Article 7(1) of the Statute and superior responsibility pursuant to Article 7(3) of the Statute are distinct categories of individual criminal responsibility, each with specific legal requirements.[4] Joint criminal enterprise responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.[5] Moreover, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute for the same crime. Where the legal requirements of both forms of responsibility are met, a conviction should be entered on the basis of Article 7(1) only, and the superior position should be taken into account as an aggravating factor in sentencing.[6] Thus, Appellant Radić’s argument is dismissed.

[1] Krnojelac Appeal Judgement, para. 96.

[2] Trial Judgement, para. 278 (footnote omitted).

[3] Radić Reply Brief paras 52-53, 62-63.

[4] Blaskić Appeal Judgement, para. 91; see below, paras 144, 383.

[5] See above, para 97.

[6] See Blaskić Appeal Judgement, para. 91, referring to Čelebići Appeal Judgement, para. 745.

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

106. [The Appeals Chamber] notes that it has repeatedly confirmed the distinction between intent and motive:

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 Tadic appeal judgement the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law’.[1]

Shared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise.[2] Therefore, the Appellants’ argument in this regard is rejected.

[1] Jelesić Appeal Judgement, para. 49, referring to Tadić Appeal Judgement, para. 269; see also Krnojelac Appeal Judgement, para. 102.

[2] Krnojelac Appeal Judgement, para. 100. 

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

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.[1]

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.[2] 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. […].

[1] Trial Judgement, para. 288.

[2] Krnojelac Appeal Judgement, para. 111. 

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

112. The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved.[1] Nor is the participant in a joint criminal enterprise required to be physically present when and where the crime is being committed.[2]

113. While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence. […].

[1] See e.g. Tadić Appeal Judgement, para. 192.

[2] Krnojelac Appeal Judgement, para. 81.

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

117. The jurisprudence on this issue is clear. Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime. The common purpose need not be previously arranged or formulated; it may materialize extemporaneously.[1]

118. In the Krnojelac Appeal Judgement, the Appeals Chamber confirmed that the systemic form of joint criminal enterprise does not require proof of an agreement:

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.[2]

[1] Tadić Appeal Judgement, para. 227(ii). See also Vasiljević Appeal Judgement, para. 100.

[2] Krnojelac Appeal Judgement, para. 97.

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

182. The Appeals Chamber wishes to point out that, although commonly referred to as the “category known as        concentration camps”, the second category of joint criminal enterprise, known as systemic, covers all
       cases relating to an organised system with a common criminal purpose perpetrated against the detainees.
       This concept of criminal responsibility has been shaped by the case-law derived from concentration camp
       cases from the Second World War, but reference to the concentration camps is circumstantial and in no
       way limits the application of this mode of responsibility to those detention camps similar to concentration
       camps.[1]

[1] See also Krnojelac Appeal Judgement, para. 89.

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

262. In a joint criminal enterprise such as that conducted in Omarska camp, it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment. In this case it has to be proved that the death of the victim was the result of what happened in Omarska camp, be it inhumane conditions, beatings or ill-treatment. On this point, Kvočka rightly argues that the Trial Chamber must first establish the existence of the crime of murder. In this regard, the Appeals Chamber notes that the Trial Chamber did not provide a specific section for the murders committed in Omarska camp and for the specific responsibility of each of the accused for these murders. The Trial Chamber made, however, a number of findings throughout the Trial Judgement on the charges of murder alleged in the Indictment. The Appeals Chamber refers to its previous discussion in this respect[1] and recalls that such a generic approach does not invalidate the Trial Judgement. The Appeals Chamber dismisses Kvočka's contention that the Trial Chamber failed to evaluate the evidence in its ruling on the charges of murder.

263. In addition, contrary to Kvočka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose.[2] […]

[1] See above, paras 55-76.

[2] See Trial Judgement, para. 312. 

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

276.    […] the Appeals Chamber concurs with the finding of the Trial Chamber that a participant in a joint criminal enterprise would not need to know of each crime committed in order to be criminally liable.[1] Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently is enough in this regard. […]

[1] Trial Judgement, para. 312 and footnote 686.

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

259. The Trial Chamber referred to the case-law of the ICTY and ICTR and adopted the following definition of the crime of murder:

The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[1]

The Appeals Chamber cannot but agree with the Trial Chamber’s definition, but wishes to clarify the following.

260. In the Krnojelac case, the Trial Chamber rightly stated that proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered.[2] The fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible.[3]

261. Accordingly, for the crime of murder under Article 3 of the Statute to be established, the Prosecutor bears the onus of proving:

1) the death of a victim taking no active part in the hostilities;

2) that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;

3) the intent of the accused or of the person or persons for whom he is criminally responsible

    a) to kill the victim; or

    b) to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[4]

[1] Trial Judgement, para. 132.

[2] Krnojelac Trial Judgement, para. 326.

[3] Ibid., paras 326-327. See also Tadić Trial Judgement, para. 240.

[4] Čelebići Appeal Judgement, para. 423; Kordić and Čerkez Appeal Judgement, para. 37. See also. Jelisić Trial Judgement, para. 35; Kupreškić et al. Trial Judgement, paras 560-561; Blaskić Trial Judgement, para. 217; Kordić and Čerkez Trial Judgement, para. 236; Krstić Trial Judgement, para. 485; Krnojelac Trial Judgement, para. 324; Vasiljević Trial Judgement, para. 205; Stakić Trial Judgement, para. 584; Galić Trial Judgement, para. 150.

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

319. Referring to the case-law of the Tribunal, the Trial Chamber defined the constitutive elements of the crime of persecution as follows: “(1) the occurrence of a discriminatory act or omission; (2) a basis for that act or omission founded on race, religion, or politics; and (3) the intent to infringe an individual’s enjoyment of a basic or fundamental right”[1] and, in more general terms, defined persecutions as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5”.[2]

320. The Appeals Chamber finds no error in the constitutive elements identified by the Trial Chamber but prefers to adopt the wording of the Krnojelac Appeal Judgement, which was rendered after the delivery of the Trial Judgement in the present case and which it has endorsed in all its recent judgements:

(…) the crime of persecution consists of an act or omission which:

  1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and
  2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).[3]

321. The Appeals Chamber also notes that with respect to the actus reus of the crime of persecutions, the Trial Chamber rightly noted that the acts included in the crime of persecution, be they considered in combination or separately, are of the same gravity as the enumerated crimes in Article 5 of the Statute.[4] Kvočka does not in fact contest the standard of gravity but refers to it to show the Trial Chamber’s alleged error. The Appeals Chamber points out that to apply the standard of gravity, the acts must not be considered in isolation, but in context, by looking at their cumulative effect.[5]

[1] Trial Judgement, para. 184, referring to Tadić Trial Judgement, para. 715.

[2] Trial Judgement, para. 184, refering to Kupreškić et al. Trial Judgement, para. 621.

[3] Krnojelac Appeal Judgement, para. 185; Vasiljević Appeal Judgement, para. 113; Blaskić Appeal Judgement, para. 131; Kordić and Čerkez Appeal Judgement, para. 101.

[4] Trial Judgement, paras. 184-185.

[5] See Trial Judgement, para. 185; also Kupreškić et al. Trial Judgement, paras 615(e) and 622; Krnojelac Trial Judgement, para. 434. 

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
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Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

323. Harassment, humiliation and psychological abuse are not listed as such under Article 5 of the Statute nor do they constitute specific offences under other articles of the Statute. The Appeals Chamber notes however that Common Article 3(1)(c) of the Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”. The specific offence of outrages upon personal dignity also appears in Article 75(2)(b) of Additional Protocol I.[1] The Appeals Chamber also considers that acts of harassment and other psychological abuse, depending on the circumstances, can clearly be assimilated to violations of the “mental well-being of persons” prohibited under Article 75(2)(a) of Additional Protocol I.[2] The Appeals Chamber recalls incidentally that acts underlying persecution under Article 5(h) of the Statute need not be considered a crime in international law.

See also paras 324-325.

[1] See also Article 4(2)(e) of Additional Protocol II.

[2] See ibid.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)