831. The Appeals Chamber recalls that trial chambers are not inherently precluded from entering a conviction for a crime on the basis of more than one mode of liability, if this is necessary to reflect the totality of an accused’s criminal conduct.[1] The Appeals Chamber considers that the Trial Chamber correctly set out the applicable law in relation to the entering of convictions on the basis of multiple modes of liability.[2] The Appeals Chamber further recalls that the scope of a convicted person’s criminal responsibility must be unequivocally established[3] and that a trial chamber must “identify unambiguously the mode(s) of liability for which an accused is convicted and the relation between them”.[4] The Appeals Chamber emphasises that whether single or multiple forms of responsibility are found to be appropriate, it is the crime itself, rather than the mode of liability, for which an accused person is convicted.[5] It follows that any sentence imposed by a trial chamber must correspond to the totality of the criminal conduct of a convicted person, and that the convicted person must not be punished more than once for the same conduct.[6] In this regard, the Appeals Chamber is satisfied that the Trial Chamber convicted Đorđević for the crimes once, on the basis of two modes of liability, and not, as he contends, twice for the same crimes.[7] Accordingly the Appeals Chamber finds that, as a matter of law, it was within the Trial Chamber’s discretion to enter convictions on the basis of more than one mode of liability.

832. The Appeals Chamber observes, however, that, contrary to the Prosecution’s submission,[8] the conduct relied upon to establish Đorđević’s liability pursuant to aiding and abetting is entirely encapsulated within the conduct the Trial Chamber relied on to establish his participation in the JCE, and that the Trial Chamber made no distinction between the acts committed by Đorđević with respect to either form of liability.[9] In these circumstances, the Trial Chamber’s conclusion that “[t]hese facts are sufficiently compelling to also maintain the conviction for aiding and abetting […] in order to fully encapsulate [Đorđević’s] criminal conduct” does not provide any explanation of the relationship between the two modes of liability.[10] As a result, the Trial Chamber fails to articulate why both modes of liability were necessary to reflect the totality of his conduct,[11] particularly in light of its explicit finding that Đorđević’s “primary criminal liability in this case is by virtue of his participation […] in a joint criminal enterprise”.[12] In the Appeals Chamber’s view this constitutes a failure to provide a reasoned opinion, and amounts to an error of law.[13]

850. The Appeals Chamber notes that the definition and elements of sexual assault have been discussed, in various degrees of detail, by several trial chambers.[1] Trial chambers have held that sexual assault is broader than rape and encompasses “all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading for the victim’s dignity”.[2] The Appeals Chamber notes that the Milutinović et al. Trial Chamber, after a thorough analysis, identified the elements of sexual assault as follows:

(a) The physical perpetrator commits an act of a sexual nature on another; this includes requiring that other person to perform such an act.
(b) That act infringes the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity.
(c) The victim does not consent to the act.
(d) The physical perpetrator intentionally commits the act.
(e) The physical perpetrator is aware that the act occurred without the consent of the victim.[3]

851. This definition was adopted by the Trial Chamber in the present case.[4] While the Appeals Chamber is satisfied that this definition correctly reflects the elements of sexual assault (other than rape), it finds that some further elaboration is useful.

852. It is evident that sexual assault requires that an act of a sexual nature take place. The Appeals Chamber notes that the act must also constitute an infringement of the victim’s physical or moral integrity.[5] Often the parts of the body commonly associated with sexuality are targeted or involved. Physical contact is, however, not required for an act to be qualified as sexual in nature.[6] Forcing a person to perform or witness certain acts may be sufficient, so long as the acts humiliate and/or degrade the victim in a sexual manner.[7] Furthermore, the Appeals Chamber agrees with the Milutinović et al. Trial Chamber that “it would be inappropriate to place emphasis on the sexual gratification of the perpetrator […]. In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator” as it is precisely the sexual humiliation and degradation which “provides specificity to the offence”.[8] With regard to the issue of consent, the Appeals Chamber considers that any form of coercion, including acts or threats of (physical or psychological) violence, abuse of power, any other forms of duress and generally oppressive surrounding circumstances, may constitute proof of lack of consent and usually is an indication thereof.[9] In addition, a status of detention, particularly during armed conflict, will normally vitiate consent.[10]

1772. It is firmly established in the jurisprudence of the Tribunal that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator.[1] In addition, the Appeals Chamber recalls that it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed – if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.[2]

1773. The Appeals Chamber has previously defined “specific crime” as referring to, for example, “murder, extermination, rape, torture, wanton destruction of civilian property, etc.”[3] There is no legal requirement that the aider and abettor know every detail of the crime that was eventually committed. Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided.

1604. For the foregoing reasons, the Appeals Chamber concludes that the Trial Chamber erred in failing to find Šainović and Lukić liable under Articles 5(h) and 7(1) of the Statute for committing, through their participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Beleg, Ćirez/Qirez, and Priština/Prishtina and thereby disallowing convictions against them under Count 5 in relation to these sexual assaults. The Appeals Chamber further concludes that the Trial Chamber erred in failing to find Pavković liable under Articles 5(h) and 7(1) of the Statute for committing, through his participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Priština/Prishtina and thereby disallowing convictions against him under Count 5 in relation to these sexual assaults. Consequently, the Appeals Chamber grants, in part, the Prosecution’s third ground of appeal and the Prosecution’s submissions in relation to Pavković’s responsibility pursuant to JCE III for persecution through sexual assaults committed in Priština/Prishtina.[1] However, in the circumstances of the present case, the Appeals Chamber, Judge Ramaroson dissenting, declines to enter new convictions on appeal in relation to the sexual assaults in question.[2]

See also para. 1766.

86. The Appeals Chamber recalls that pursuant to Article 16(C) of the Directive on the Assignment of Defence Counsel, “[a]cting under the authority of lead counsel, the co-counsel may deal with all stages of the proceedings and all matters arising out of the defence of the suspect or accused.” The Appeals Chamber has previously considered that when the accused is represented, the presence of his lead counsel or co-counsel at trial is essential.[1] Thus, a lead counsel who absents himself has the duty to ensure that his co-counsel is present at trial.[2] The Trial Chamber therefore did not err in holding that one of the purposes of Article 16(C) of the Directive on the Assignment of Defence Counsel is to allow for the accused to be represented at trial hearings by a co-counsel in the event that the lead counsel is unable to attend.[3] Furthermore, the Appeals Chamber notes that the Trial Chamber explicitly took into account that Pavković’s lead counsel and co-counsel were in contact with each other, so that the co-counsel could continue to act under the authority of the lead counsel in compliance with the relevant requirement of Rule 16(C) of the Directive on the Assignment of Defence Counsel.[4] In light of these considerations, the Appeals Chamber finds that the Trial Chamber did not err in holding that the Directive on the Assignment of Defence Counsel allowed for representation by co-counsel acting under the authority of lead counsel in the absence of the latter.

See also paras 87-88.

1662.  […] Whether the resort to the use of force is legitimate under international law is a question of jus ad bellum, which is distinct from whether the way in which that force was used was legal under international humanitarian law,[1] i.e. jus in bello. The rules of international humanitarian law do not require a military commander to refrain from defending his country but demand that he ensure that his conduct and that of his subordinates comply with established humanitarian principles. […]

250.   Recalling that waiver “should not entirely foreclose” indictment defects from being raised for the first time on appeal by the defence,[1] the Appeals Chamber notes that it has not previously considered whether waiver should preclude the Prosecution from arguing for the first time on appeal that its Indictment should have been interpreted differently, when it had been put on notice at trial that the Trial Chamber considered the Indictment to be defective. The Appeals Chamber observes that the rationale for allowing the Defence to raise such objections for the first time on appeal does not apply to the Prosecution who bears the obligation of ensuring that the indictment adequately pleads its case against the accused.

611. […] the Appeal Chamber recalls that JCE liability requires the existence of “a common plan, design or purpose” amounting to, or involving the commission of a crime.[1] Such a common plan, design, or purpose may “be inferred from the facts”,[2] including events on the ground.[3] […]

[…]

654. […] [I]n view of the magnitude of forcible displacement committed in an orchestrated manner and showing a discernible pattern as well as the extensive seizure and destruction of IDs during the forcible displacement, the Appeals Chamber is satisfied that the evidence regarding these two factors is sufficient for a reasonable trier of fact to find that the only reasonable inference is that a common purpose to forcibly displace a number of Kosovo Albanians existed.[4]

1557. The Appeals Chamber finds that the Trial Chamber erred in law in concluding that for JCE III liability to arise, it must be foreseeable to the accused that the crime “would be committed”.[1] The Appeals Chamber recalls that the jurisprudence subsequent to the Brđanin Decision[2] confirmed that JCE III liability arises even if the JCE member knows that the commission of the crime is only a “possible consequence” of the execution of the common purpose.[3] It is necessary “that the possibility a crime could be committed is sufficiently substantial as to be foreseeable to the accused.”[4] The correct legal standard for the JCE III mens rea requires that it was foreseeable to the accused that such a crime might be committed by a member of the JCE or one or more of the persons used by the accused (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose[5] and the accused willingly took the risk that such a crime might occur by joining or continuing to participate in the enterprise.[6] The Appeals Chamber discerns no cogent reason to depart from its jurisprudence on this matter.

1558. Furthermore, the Appeals Chamber finds no merit in Šainović’s assertion that the Trial Chamber’s approach is “deeply compatible and consistent”[7] with the Appeals Chamber’s affirmation of the “possibility” standard. While it is necessary that the crime be foreseeable based on the “information available to the accused”,[8] this does not reflect the degree of foreseeability required. It is the degree of foreseeability that marks the difference between the “possibility” and “probability” standards. Šainović’s argument is therefore dismissed. The Appeals Chamber further considers that awareness of a higher likelihood of risk and a volitional element are reflected in the mens rea for JCE III. The Appeals Chamber recalls in this respect that “criminal responsibility may be imposed upon an actor for a crime falling outside [the common purpose], even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur, and nevertheless participated in the [JCE]” because the accused already possesses the intent to participate and further the common criminal purpose of a group.[9] Lukić’s argument is accordingly dismissed.

[…]

1575. The question of whether persecution, through sexual assaults, committed in Beleg, Ćirez/Qirez, and Priština/Prishtina were foreseeable to Šainović and Lukić must be assessed in relation to their individual knowledge. Depending on the information available, what may be foreseeable to one member of a JCE, might not be foreseeable to another.[10] Consequently, the Appeals Chamber will consider whether it was foreseeable to them, individually, that sexual assaults could be committed and that they willingly took that risk. While the Appeals Chamber is cognisant that situations of widespread violence against the civilian population are conducive to the commission of a wide range of criminal acts, for JCE III liability to arise it must be established that the possibility of sexual violence being committed was sufficiently substantial as to be foreseeable to each accused.[11]

1256. The Appeals Chamber recalls that the essential requirement for holding a JCE member responsible for a crime under the first category of JCE is that the crime formed part of the common purpose of the JCE. In this respect, the Appeals Chamber recalls that JCE members may be held responsible for crimes carried out by principal perpetrators who were non-JCE members, provided that it has been shown that the crimes can be imputed to at least one JCE member and that the latter – when using the principal perpetrators – acted in accordance with the common objective.[2] The existence of this link between the crimes in question and a JCE member is to be assessed on a case-by-case basis.[3]

1257. Pavković’s argument that the Trial Chamber failed to examine whether he closely cooperated with the principal perpetrators for each crime charged is without merit. Close cooperation between a principal perpetrator and a JCE member, including the accused, is but one of various factors from which a chamber may infer that a crime formed part of the common purpose and is thus imputable to JCE members. It is not a prerequisite for imputing the crime to JCE members. Pavković’s argument in this regard is based on a misunderstanding of the law and is therefore dismissed.

1258. […] The Trial Chamber only imputed crimes to the JCE members at various sites, once it was satisfied that there was sufficient evidence to identify principal perpetrators as members of the VJ and/or the MUP.[6] Given the prominent positions of JCE members such as Milošević, Šainović, Pavković, and Lukić and their significant power over the VJ and/or the MUP in Kosovo,[7] the Trial Chamber’s findings regarding the principal perpetrators at each crime site was sufficiently specific to identify them as persons used by one of the JCE members.[8] […]

1259. The Appeals Chamber is not persuaded by Pavković’s assertions that in order to incur liability for using a principal perpetrator as a tool, a JCE member must have ordered or instructed the principal perpetrator to commit the crime and that there was no evidence of any such orders.[9] A JCE member’s order or instruction to non-JCE members to commit a crime is not a sine qua non prerequisite but one of several factors which may be taken into account by a chamber when determining whether to impute the crime to that JCE member.[10]

1260. There is no merit in Pavković’s arguments that it was inappropriate to charge him with “committing” crimes as those who carried out the actus reus of the crimes were not members of the JCE[11] and that, if it were proven that he or other JCE members ordered non-JCE members to commit crimes, “ordering” would have been the appropriate mode of liability.[12] The Appeals Chamber recalls that it has “consistently held that participation in a JCE is a form of ‘commission’ under Article 7(1) of the Statute.” […]