464. […] [N]either the Report of the Darfur Commission nor the ICC jurisprudence […] is binding on this Tribunal.[1] There was no obligation on the Trial Chamber to explicitly consider these authorities, which are at best persuasive. […]

24. [T]his Tribunal is an autonomous international judicial body, and although the ICJ is the “principal judicial organ”[1] within the United Nations system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion.

598. […] [T]he Appeals Chamber recalls that it is not bound by the findings of other courts – domestic, international, or hybrid – and that, even though it will consider such jurisprudence, it may nonetheless come to a different conclusion on a matter than that reached by another judicial body.[1] The Appeals Chamber considers that in order to constitute a cogent reason for departing from its established jurisprudence on a matter, the party advocating a departure would need to show that a non‑binding opinion of another court is the correct law and demonstrate that there is a clear mistake in the Appeals Chamber’s approach.[2] […]

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.