51.     The Appeals Chamber draws attention to the distinction between the mental element required for aiding and abetting and that required for co-perpetration. In the case of aiding and abetting, the requisite mental element is knowledge that the acts committed by the aider and abettor further the perpetration of a specific crime by the principal offender. In the case of co-perpetration, the intent to perpetrate the crime or to pursue the joint criminal purpose must be shown.[1] The Appeals Chamber also recalls that in the Aleksovski Appeals Judgement it followed the Furundžija Judgement and held that “it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that […] the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.”[2] The Appeals Chamber also stated that “the aider and abettor [must be aware] of the essential elements of the crime committed by the principal (including his relevant mens rea).” The Appeals Chamber notes that no cogent reason was given which would justify this case-law being amended.[3]

52.     The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration. […]

73.     The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in deciding that the notion of “commission” within the meaning of Article 7(1) of the Statute must be reserved for the principal perpetrator of the crime. Although it considered that “the seriousness of what is done by a participant in a joint criminal enterprise who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender,”[1] the Trial Chamber held that the term “committed” did not apply to a participant in a joint criminal enterprise who did not personally and physically commit the crime. On this point, the relevant passage of the Judgment is in paragraph 73 and reads as follows in the authoritative English version:

[…] The Prosecution has sought to relate the criminal liability of a participant in a joint criminal enterprise who did not physically commit the relevant crime to the word “committed” in Article 7(1), but this would seem to be inconsistent with the Appeals Chamber’s description of such criminal liability as a form of accomplice liability [footnote, referring to Tadić Appeals Judgement, para. 192] and with its definition of the word “committed” as “first and foremost the physical perpetration of a crime by the offender himself” [footnote, referring to Tadić Appeals Judgement, para. 188]. For convenience, the Trial Chamber proposes to refer to the person who physically committed the relevant crime as the “principal offender”.[2]

Unlike the Trial Chamber, the Appeals Chamber does not consider that the Prosecution’s submission is contrary to the Tadić Appeals Judgement. The Appeals Chamber notes that paragraph 188 of the Tadić Appeals Judgement, partially quoted by the Trial Chamber, reads as follows:

This provision [Article 7(1) of the Statute] covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose.

The Appeals Chamber accepts the Prosecution submission as justified and points out that it has since been upheld in the Ojdanić case. The Chamber views participation in a joint criminal enterprise as a form of “commission” under Article 7(1) of the Statute. For more detail on this point, the Appeals Chamber refers to the section of this Judgement on the applicable law.[4]

129.    The Appeals Chamber notes that, pursuant to Article 18(4) of the Statute, the indictment must set out “a concise statement of the facts and the crime or crimes with which the accused is charged”. Likewise, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case”.

130.    The Prosecution’s obligation to set out a concise statement of the facts of the case in the indictment must be interpreted in the light of the provisions of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which provide that, in the determination of charges against him, the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.

131.    In the case-law of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proven.[1] Hence, the question of whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

154.    The Čelebići Appeals Judgement defines the “had reason to know” standard by setting out that “[a] showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he ‘had reason to know’ […] This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.”[1]

155.    The Appeals Chamber finds that this case-law shows only that, with regard to a specific offence (torture for example), the information available to the superior need not contain specific details on the unlawful acts which have been or are about to be committed. It may not be inferred from this case-law that, where one offence (the “first offence”) has a material element in common with another (the “second offence”) but the second offence contains an additional element not present in the first, it suffices that the superior has alarming information regarding the first offence in order to be held responsible for the second on the basis of Article 7(3) of the Statute (such as for example, in the case of offences of cruel treatment and torture where torture subsumes the lesser offence of cruel treatment).[2] Such an inference is not admissible with regard to the principles governing individual criminal responsibility. In other words, and again using the above example of the crime of torture, in order to determine whether an accused “had reason to know” that his subordinates had committed or were about to commit acts of torture, the court must ascertain whether he had sufficiently alarming information (bearing in mind that, as set out above, such information need not be specific) to alert him to the risk of acts of torture being committed, that is of beatings being inflicted not arbitrarily but for one of the prohibited purposes of torture. Thus, it is not enough that an accused has sufficient information about beatings inflicted by his subordinates; he must also have information – albeit general – which alerts him to the risk of beatings being inflicted for one of the purposes provided for in the prohibition against torture.

156.    The Appeals Chamber reiterates that an assessment of the mental element required by Article 7(3) of the Statute should, in any event, be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question.[3]

217.    The Appeals Chamber will now examine which acts of displacement may constitute persecution when committed with the requisite discriminatory intent and whether the acts alleged by the Prosecution were such that they were acts constituting the crime of persecution. The Appeals Chamber holds that, in order to do this and contrary to what the Prosecution claims, it is not necessary to define deportation as “an umbrella term that covers acts of forcible displacement, whether internal or cross-border” so as to consider whether these acts were such as to constitute the crime of persecution.

218.    The Appeals Chamber holds that acts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border. The prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference. The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent.

219.    The Appeals Chamber holds that the crime of persecution may take different forms. It may be one of the other acts constituting a crime under Article 5 of the Statute[2] or one of the acts constituting a crime under other articles of the Statute.[3]

220.    However, a conviction can only be based on an offence that existed at the time the acts or omissions with which the accused is charged were committed and which was sufficiently foreseeable and accessible.[4] It is therefore necessary to investigate which acts of displacement are considered crimes under customary international law. The Geneva Conventions are considered to be the expression of customary international law.[5] Article 49 of the Fourth Geneva Convention prohibits displacement to another state, within or from occupied territory. It provides that: “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”[6] Moreover, Article 85 of Additional Protocol I prohibits “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention.”[7] Furthermore, Article 17 of Additional Protocol II to the Geneva Conventions explicitly prohibits the forced displacement of the population within or outside a country in which an internal armed conflict has broken out. It reads as follows:

Article 17 - Prohibition of forced movement of civilians - 1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. 2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

Article 17 of Additional Protocol II uses the term “forced movement” to describe displacements within and across borders during an internal armed conflict. However, the Commentary to this Protocol states that the term “forced movement” also covers “deportation measures obliging an individual to leave his country”.[9] The Geneva Conventions and their Additional Protocols prohibit forced movement within the context of both internal and international armed conflicts. This is relevant when determining the gravity of the acts in question, which is what the Appeals Chamber will now consider.

221.    For these acts to be considered acts constituting the crime of persecution, they must have been committed, separately or cumulatively, with discriminatory intent and must constitute a crime of persecution the gravity of which is equal to the other crimes listed in Article 5 of the Statute. On several occasions, the Tribunal’s Trial Chambers have found that the forced displacement of the population within a state or across its borders constituted persecution.[10] The Secretary-General’s report, which was approved by the Security Council,[11] states that “[c]rimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”[12] It further states that “[c]rimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape” and that “[i]n the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic rape.”[13] The Security Council was therefore particularly concerned about acts of ethnic cleansing and wished to confer jurisdiction on the Tribunal to judge such crimes, regardless of whether they had been committed in an internal or an international armed conflict. Forcible displacements, taken separately or cumulatively, can constitute a crime of persecution of equal gravity to other crimes listed in Article 5 of the Statute. This analysis is also supported by recent state practice, as reflected in the Rome Statute, which provides that displacements both within a state and across national borders can constitute a crime against humanity and a war crime.[14]

222.    The Appeals Chamber concludes that displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute. The Appeals Chamber finds that the facts accepted by the Trial Chamber fall within the category of displacements which can constitute persecution.

223.    For the reasons set out above, the Appeals Chamber holds that at the time of the conflict in the former Yugoslavia, displacements both within a state and across a national border were crimes under customary international law. Consequently, the principle nullum crimen sine lege has been respected.[15]

CONSIDERING that the Appeals Chamber has an obligation to give reasoned opinions for its decisions but that this obligation does not require it to spell out every step in its reasoning;[1]

51.     […] [T]he Appeals Chamber holds that an accused cannot be charged under Article 7(3) of the Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate. […]

See also paragraphs 45-50.

51.     […] [T]he Appeals Chamber holds the view that this Tribunal can impose criminal responsibility only if the crime charged was clearly established under customary law at the time the events in issue occurred.[1] […]

[…]

55.     […] [A]n expansive reading of criminal texts violates the principle of legality, widely recognized as a peremptory norm of international law, and thus of the human rights of the accused.[2]

34.     […] As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.[1]

13.     […] Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.[1] […]