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.

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.

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.     

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.

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.

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. […].

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]

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] […]

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]

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.