JCE 3

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1696. […] [T]he Appeals Chamber considers that […] there is no express time frame included in the foreseeability standard […][1] […]

[1]           See [ainović et al. Appeal Judgement, paras 1061, 1557.

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Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber upheld the application of the third category of JCE.

83. […] For a finding of responsibility under the third category of JCE, it is not sufficient that an accused created the conditions making the commission of a crime falling outside the common purpose possible; it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed. […]

84. Turning to Martić’s claim that the third category of JCE is controversial as it “lowers the mens rea required for commission of the principal crime without affording any formal diminution in the sentence imposed”,[1] the Appeals Chamber recalls that it has already found that “in practice, this approach may lead to some disparities, in that it offers no formal distinction between JCE members who make overwhelmingly large contributions and JCE members whose contributions, though significant, are not as great.”[2] It is up to the trier of fact to consider the level of contribution – as well as the category of JCE under which responsibility attaches – when assessing the appropriate sentence, which shall reflect not only the intrinsic gravity of the crime, but also the personal criminal conduct of the convicted person and take into account any other relevant circumstance. This argument thus stands to be rejected.

[1] See, in particular, Defence Appeal Brief, para. 61.

[2] Brđanin Appeal Judgement, para. 432.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

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]

[1] Trial Judgement, vol. 1, para. 111, referring to Brđanin Decision [Prosecutor v. Brđanin, Case No. IT-99-36-AR73.10, Decision on Interlocutory Appeal, 19 March 2004], para. 5, Martić Appeal Judgement, para. 83.

[2] The Appeals Chamber notes that paragraph 5 of the Brđanin Decision reads: for an accused to be convicted of a crime under the third category of JCE, it is required to be “reasonably foreseeable to him” that the crime “would be committed” (emphasis added).

[3] Karadžić JCE III Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009], paras 15, 17-18, referring to Vasiljević Appeal Judgement, para. 101, Brđanin Appeal Judgement, paras 365, 411, Stakić Appeal Judgement, paras 65, 87, Blaškić Appeal Judgement, para. 33, Martić Appeal Judgement, para. 168, Krnojelac Appeal Judgement, para. 32, Kvočka et al. Appeal Judgement, para. 83, Deronjić Judgement on Sentencing Appeal, para. 44. The Appeals Chamber further notes that insofar as the Trial Chamber suggested that paragraph 83 of the Martić Appeal Judgement also supports its definition, it was mistaken as the formulation adopted in the Martić Appeal Judgement reflects the “possibility” standard: “it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed” (see Martić Appeal Judgement, para. 83, emphasis added).

[4] Karadžić JCE III Decision, para. 18.

[5] Brđanin Appeal Judgement, paras 365, 411.

[6] Kvočka et al. Appeal Judgement, para. 83, referring to Tadić Appeal Judgement, paras 204, 220, 228; Vasiljević Appeal Judgement, para. 99.

[7] Šainović’s Response Brief [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Defence Respondent’s Brief, 2 November 2009], para. 56.

[8] Trial Judgement, vol. 1, para. 111. See also Brđanin Appeal Judgement, para. 365, referring to Tadić Appeal Judgement, para. 220, Kvočka et al. Appeal Judgement, para. 86, Blaškić Appeal Judgement, para. 33, Stakić Appeal Judgement, paras 65, 99-103.

[9] Blaškić Appeal Judgement, para. 33.

[10] Brđanin Appeal Judgement, para. 365, referring to Tadić Appeal Judgement, para. 220, Kvočka et al. Appeal Judgement, para. 86, Blaškić Appeal Judgement, para. 33, Stakić Appeal Judgement, paras 65, 99-103.

[11] See Karadžić JCE III Decision, para. 18.

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Decision on JCE III Foreseeability - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.4)

In its Impugned Decision,[1] the Trial Chamber held that the most appropriate formulation for the mental element of the third form of JCE (“JCE III”) is “reasonably foreseeable consequences”,[2] i.e. “foresight by the accused that the deviatory crimes would probably be committed”,[3] as opposed to the Indictment’s reference to “possible consequence”.[4] It further noted that “while subsequent jurisprudence has referred on various occasions to possibility and probability, there does not appear to have been a rejection at any stage of the test set in [the] Tadić [Appeal Judgement]”.[5]

The Appeals Chamber clarified the existing jurisprudence, stating that

14. […] the Tadić Appeal Judgement deploys a range of diverse formulations in setting out the mens rea element of JCE III.[6] These include several formulations that tend more towards a possibility than a probability standard. For example, one paragraph of the Tadić Appeal Judgement partly defines the mens rea of JCE III as requiring “the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose”,[7] while another partly summarizes the requirement as: “it was foreseeable that […] a crime might be perpetrated by one or other members of the group”.[8] The variable formulations present in the Tadić Appeal Judgement at minimum suggest that it did not definitively set a probability standard as the mens rea requirement for JCE III.[9]

15. While the Tadić Appeal Judgement does not settle the issue of what likelihood of deviatory crimes an actor must be aware of to allow conviction under JCE III, subsequent Appeals Chamber jurisprudence does. For example, the Brđanin Appeal Judgement explained that:

[in the case of] crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated … in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.[10]

More broadly, a significant number of Appeals Judgements have adopted formulations suggestive of a possibility standard rather than a probability one. Thus, the Vasiljević, Brđanin, Stakić, Blaškić, Martić and Krnojelac Appeal Judgements all deploy the Tadić Appeal Judgement phrase “foreseeable that such a crime might be perpetrated” in defining the JCE III mens rea requirement.[11] Most of these Appeal Judgements further explain that liability attaches even if an actor knows that perpetration of a crime is only a “possible consequence” of the execution of the common purpose.[12] 

16. Much of the jurisprudence that Karadžić advances in support of a probability standard does not support his point or is at best ambiguous.[13] Thus the Blaskić Appeal Judgement, which Karadžić claims “rejected the lower mens rea standard proposed by the [P]rosecution”[14] actually states with regards to JCE III mens rea that: “criminal responsibility may be imposed upon an actor for a crime falling outside the originally contemplated enterprise, even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur”.[15] Karadžić is also mistaken in suggesting that the Krstić Appeal Judgement is inconsistent with a “possibility standard”. The Appeals Chamber used the ambiguous phrase “probability that other crimes may result” in defining the mens rea for JCE III,[16] a formulation that is potentially consistent with a possibility standard, especially in the context of prior and subsequent Appeals Chamber Judgements.[17] 

The Appeals Chamber emphasized that the probability standard adopted in paragraph 5 of the Brđanin Decision[18] has been implicitly overruled by subsequent Appeals Chamber’s jurisprudence, including the Brđanin and Blaškić Appeal Judgements.[19]. In the present decision, the Appeals Chamber identified the level of certainty required to meet the JCE III mens rea standard:

18. Reviewing the Appeals Chamber’s jurisprudence convincingly demonstrates that JCE IIImens rea does not require a “probability” that a crime would be committed. Thus it is not necessary to address Karadžić’s contentions regarding customary international law. It is, however, worth noting that the term “possibility standard” is not satisfied by implausibly remote scenarios. Plotted on a spectrum of likelihood, the JCE III mens rea standard does not require an understanding that a deviatory crime would probably be committed; it does, however, require that the possibility a crime could be committed is sufficiently substantial as to be foreseeable to an accused. The Indictment pleads just such a standard.[20]

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, 28 April 2009 (“Impugned Decision”).

[2] Ibid. para. 56.

[3] Ibid. para. 55.

[4] Indictment para. 10; see also Impugned Decision, paras 50, 56.

[5] Impugned Decision, para. 55.

[6] See id., paras 49-50, Response [Response to Prosecution Appeal of Decision on JCE III – Foreseeability, 25 May 2009], para. 29.

[7] Tadić Appeal Judgement, para. 220.

[8] Ibid. [Tadić Appeal Judgement] para. 228 (emphasis omitted).

[9] Insofar as the Impugned Decision suggests that paragraph 232 of the Tadić Appeal Judgement, which states that Tadić “was aware that the actions of the group of which he was a member were likely to lead to [...] killings” definitively settled on a probability standard, see para. 50, it would appear to be mistaken. The Appeals Chamber’s factual conclusion demonstrated that Tadić either met or exceeded the standard for JCE III mens rea, but did not definitively indicate where the standard lay on any spectrum of likelihood.

[10] Brđanin Appeal Judgement, para. 411 (emphasis added). See also ibid. para. 365.

[11] Vasiljević Appeal Judgement, para. 101; Brđanin Appeal Judgement, paras. 365, 411; Stakić Appeal Judgement, para. 65; Blaškić Appeal Judgement, para. 33; Martić Appeal Judgement, para. 168; Krnojelac Appeal Judgement, para. 32 (emphases, citations and quotations omitted). See also Kvočka Appeal Judgement, para. 83.

[12] Vasiljević Appeal Judgement, para. 101; Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 87; Blaškić Appeal Judgement, para. 33. See also Deronjić Appeal Judgement, para. 44.

[13] Karadžić does accurately contend that the Gotovina Decision [Prosecutor v. Gotovina et al., Case No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction, 6 June 2007] is not relevant to determining the standard of mens rea required for JCE III, see Response, para. 20. The Gotovina Decision simply decided that the specifics of JCE III mens rea did not qualify as a jurisdictional question, see para. 24. Thus it supports neither Karadžić’s nor the Prosecution’s contentions.  

[14] Response, para. 16 (emphasis omitted).

[15] Blaškić Appeal Judgement, para. 33.

[16] Krstić Appeal Judgement, para. 150 (emphasis added).

[17] Paragraph 147 of the Krstić Appeal Judgement, contrary to Karadžić’s contentions, Response para. 24, simply states the level of certainty that Krstić enjoyed, rather than defining the minimum required level of JCE III mens rea.

[18] Prosecutor v. Brđanin, Case No. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004.

[19] Brđanin Appeal Judgement, para. 365; Blaškić Appeal Judgement, para. 33.

[20] Cf. Tadić Appeal Judgement, para. 204; Kvočka Appeal Judgement, para. 86; Impugned Decision, para. 56.

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Decision on JCE III - 19.03.2004 BRĐANIN Radoslav
(IT-99-36-A)

5. The elements of a crime are those facts which the Prosecution must prove to establish that the conduct of the perpetrator constituted the crime alleged. However, participants other than the direct perpetrator of the criminal act may also incur liability for a crime, and in many cases different mens rea standards may apply to direct perpetrators and other persons.[1] The third category of joint criminal enterprise liability is, as with other forms of criminal liability, such as command responsibility or aiding and abetting, not an element of a particular crime. It is a mode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence.[2] An accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed. Rather, it is sufficient that that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed.

6. For example, an accused who enters into a joint criminal enterprise to commit the crime of forcible transfer shares the intent of the direct perpetrators to commit that crime. However, if the Prosecution can establish that the direct perpetrator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence. Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent.[3]

7. As a mode of liability, the third category of joint criminal enterprise is no different from other forms of criminal liability which do not require proof of intent to commit a crime on the part of an accused before criminal liability can attach. Aiding and abetting, which requires knowledge on the part of the accused and substantial contribution with that knowledge, is but one example. Command responsibility liability, which requires the Prosecution to establish that a Commander knew or had the reason to know of the criminality of subordinates, is another.

8. This is the approach that the Appeals Chamber has taken with respect to aiding and abetting the crime of persecution. An accused will be held criminally responsible as an aider and abettor of the crime of persecution where, the accused is aware of the criminal act, and that the criminal act was committed with discriminatory intent on the part of the principal perpetrator, and that with that knowledge the accused made a substantial contribution to the commission of that crime by the principal perpetrator.[4]

9. The fact that the third category of joint criminal enterprise is distinguishable from other heads of liability is beside the point. Provided that the standard applicable to that head of liability, i.e. “reasonably foreseeable and natural consequences” is established, criminal liability can attach to an accused for any crime that falls outside of an agreed upon joint criminal enterprise.

10. The Trial Chamber erred by conflating the mens rea requirement of the crime of genocide with the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused. The Decision of the Trial Chamber to acquit Brdanin of Count 1 of the Indictment, genocide, with respect to the third category of joint criminal enterprise liability is reversed.

[1] Vasiljević Appeal [Prosecutor v Vasiljević, Case No. IT-98-33-A, Judgement, 25 February 2004], par 102.

[2] Appeal Brief [Prosecution’s Appeal from Trial Chamber’s Decision Pursuant to 98bis, 10 December 2003], par 16.

[3] See also the example given in Vasiljević Appeal, par 99.

[4] Prosecutor v Krnojelac, Appeals Judgment, Case IT-97-25-A, 17 September 2003, par 52.

. The Trial Chamber erred by conflating the mens rea requirement of the crime of genocide with the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused. The Decision of the Trial Chamber to acquit Brdanin of Count 1 of the Indictment, genocide, with respect to the third category of joint criminal enterprise liability is reversed.

[1] Vasiljević Appeal [Prosecutor v Vasiljević, Case No. IT-98-33-A, Judgement, 25 February 2004], par 102.

[2] Appeal Brief [Prosecution’s Appeal from Trial Chamber’s Decision Pursuant to 98bis, 10 December 2003], par 16.

[3] See also the example given in Vasiljević Appeal, par 99.

[4] Prosecutor v Krnojelac, Appeals Judgment, Case IT-97-25-A, 17 September 2003, par 52.

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Decision on Jurisdictional Appeals - 12.04.2006 KAREMERA et al.
(ICTR-98-44-AR72.5, ICTR-98-44-AR72.6)

The Appeals Chamber held that “customary international law permits imposition of third category JCE liability on an accused for crimes committed by fellow participants in a JCE of ‘vast scope’” (para. 12).  Accordingly, the Appeals Chamber upheld (paras 12-18) the Trial Chamber’s decision not to find that third category JCE liability can be imposed only when the JCE is “limited to a specific operation and a restricted geographical area, and where the Accused was not structurally remote from the actual perpetrators of the crimes.”[1] 

The Appeals Chamber, however, cautioned that (para. 17):

Third category JCE liability can be imposed only for crimes that were foreseeable to an accused. In certain circumstances, crimes committed by other participants in a large-scale enterprise will not be foreseeable to an accused.

[1] Prosecutor v. Karemera et al., Case No. ICTR-98-44, Decision on Defence Motion Challenging the Jurisdiction of the Tribunal – Joint Criminal Enterprise Rules 72 and 73 of the Rules of Procedure and Evidence, 5 August 2005, para. 4 (internal footnotes omitted).

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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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Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

97. […] The Appeals Chamber recalls that liability for deviatory crimes attributed via the third category of JCE involves responsibility for crimes committed “beyond the common purpose, but which are nevertheless a natural and foreseeable consequence” of it.[1] Reversal of the Trial Chamber’s finding that a JCE existed means that other crimes could not be a natural and foreseeable consequence of that JCE’s common purpose. Accordingly, the Appellants’ convictions for deviatory crimes entered via the third form of that JCE must also fall.[2]

[1] Kvočka et al. Appeal Judgement, para. 83.

[2] See [Gotovina and Markač Appeal Judgement], paras 89-90. Judge Agius and Judge Pocar dissent on this paragraph.

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

623.   The Appeals Chamber recalls that convictions for deviatory crimes that are not part of the joint criminal enterprise’s common purpose are possible pursuant to the third or extended form of joint criminal enterprise. Convictions for such crimes require that the additional deviatory crimes were a “foreseeable” possible consequence of carrying out “the actus reus of the crimes forming part of the common purpose”, and that “the accused, with the awareness that such a [deviatory] crime was a possible consequence of the implementation of th₣eğ enterprise, decided to participate in that enterprise”.[1]

[…]

627.   The Appeals Chamber recalls that an accused can be held responsible for crimes beyond the common purpose of a joint criminal enterprise if they were a natural and foreseeable consequence thereof.[2] However, as recalled by the Appeals Chamber, what is natural and foreseeable to one person participating in a joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them.[3] Thus, participation in a 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.[4]

[…]

629.   A trial chamber must be satisfied that the only reasonable inference is that the accused, through his knowledge and through the level of his involvement in the joint criminal enterprise would foresee that the extended crime would possibly be perpetrated.[5] […]

See also para. 564.

[1] Gotovina and Markač Appeal Judgement, para. 90; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009 (“Karadžić Appeal Decision of 25 June 2009”), paras. 15-18.

[2] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009, paras. 15, 16; Kvočka et al. Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 148-151. See also Appeal Decision of 12 April 2006, para. 17.

[3] Kvočka et al. Appeal Judgement, para. 86.

[4] Kvočka et al. Appeal Judgement, para. 86.

[5] Kvočka et al. Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 147-151. The Appeals Chamber further recalls that the third form of joint criminal enterprise mens rea standard does not require an understanding that a deviatory crime would probably be committed. It does, however, require that the possibility that a crime could be committed is sufficiently substantial as to be foreseeable to an accused. See Karadžić Appeal Decision of 25 June 2009, para. 15. See also Gotovina and Markač Appeal Judgement, para. 90.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

958. The Appeals Chamber recalls that an accused can only be held responsible for crimes pursuant to the third category of joint criminal enterprise, when the elements of the first category of joint criminal enterprise have been satisfied.[1] Thus, the extended form of joint criminal enterprise attaches only where a trial chamber is satisfied that an accused already possessed the intent to participate in and further the common criminal purpose of a group.[2] The Appeals Chamber recalls further that the subjective element of the first category of joint criminal enterprise is that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and the intent to participate in a common plan aimed at their commission.[3] For liability pursuant to the third category of joint criminal enterprise, a trial chamber must be satisfied in addition that: (i) it was foreseeable to the accused that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by any other member of the joint criminal enterprise) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[4] […]

[…]

966. The Appeals Chamber understands Župljanin to argue that the Trial Chamber erred by convicting him pursuant to the third category of joint criminal enterprise for Župljanin’s JCE III Crimes because these crimes are more serious than the JCE I Crimes.[5] The Appeals Chamber, however, observes that this contention is essentially premised on his suggestion to depart from the existing jurisprudence on the basis of his misconstruction of the law. More specifically, Župljanin argues that the Appeals Chamber should depart from its jurisprudence and establish an additional requirement within the subjective element of the third category of joint criminal enterprise, namely that in cases involving “violent foreseeable crimes” the accused must have “intended recourse to violent means” to implement the joint criminal enterprise.[6] However, the Appeals Chamber is not persuaded by this contention for the following reasons. 

See also paras 967-976.

[1] See Blaškić Appeal Judgement, para. 33; Vasiljević Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 228.

[2] See e.g. Blaškić Appeal Judgement, para. 33, referring to Vasiljević Appeal Judgement, para. 101 (quoting Tadić Appeal Judgement, para. 228); Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 65; Kvoćka et al. Appeal Judgement, para. 83.

[3] Popović et al. Appeal Judgement, para. 1369. See Đorđević Appeal Judgement, para. 468.

[4] Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411.

[5] Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 219.

[6] Župljanin Appeal Brief, paras 223, 225.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

998. […] Contrary to Župljanin’s argument,[1] the Trial Chamber was not required to establish whether it was foreseeable that a specific group would commit the specific crime, as long as it found that it was foreseeable to Župljanin that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by another member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose and he willingly took the risk that the crime might be committed by joining or continuing to participate in the JCE.[2]

[1] Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 205.

[2] See Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

597. With respect to Stanišić’s argument that the Tribunal’s case law gives rise to cogent reasons to depart from the Tribunal’s case law for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise, the Appeals Chamber considers that Stanišić conflates the mens rea requirement for the crime of persecutions with the subjective element of a mode of liability by which criminal responsibility may attach to an accused. It recalls that for a conviction for persecutions pursuant to the third category of joint criminal enterprise, it is sufficient that it was foreseeable to the accused that an act of persecutions could be committed and that it could be committed with discriminatory intent.[1] […]

[…]

599. With respect to Stanišić’s argument that customary international law does not permit convictions for specific intent crimes pursuant to the third category of joint criminal enterprise, the Appeals Chamber observes that in its analysis of customary international law in the Tadić case, it specifically considered the provisions of the Convention for the Suppression of Terrorist Bombings and the ICC Statute cited by Stanišić.[2] It found, on the basis on numerous sources from both civil and common law jurisdictions, including post‑World War II cases, that the third category of joint criminal enterprise has existed as a mode of liability in customary international law since at least 1992 and that it applies to all crimes.[3] While Stanišić asserts that the Convention for the Suppression of Terrorist Bombings, the ICC Statute, and the post‑World War II cases on which he relies do not expressly provide for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise or even the third category of joint criminal enterprise itself,[4] this does not undermine the Appeals Chamber’s analysis of customary international law and conclusion in the Tadić case, which has been consistently confirmed in the Tribunal’s subsequent jurisprudence.[5] In the Appeals Chamber’s view, Stanišić merely relies upon the absence of express support in the sources he identifies, without showing that they give rise to cogent reasons to depart from the Tribunal’s existing jurisprudence.

[1] Đorđević Appeal Judgement, para. 919; Brđanin Appeal Decision of 19 March 2004, para. 6. It must further be shown that the accused willingly took the risk that the crime might be committed (see supra [Stanišić and Župljanin Appeal Judgement]], para. 595).

[2] Tadić Appeal Judgement, paras 221‑223, referring to Convention for the Suppression of Terrorist Bombings [International Convention for the Suppression of Terrorist Bombing, U.N. Doc. A/RES/52/164; 37 ILM 249 (1998); 2149 UNTS 284, entered into force 23 May 2001]], art. 2(3)(c), ICC Statute [Statute of the International Criminal Court, adopted by a Diplomatic Conference in Rome on 17 July 1998]], art. 25(3). See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 355-363.

[3] Tadić Appeal Judgement, paras 194‑226. See Đorđević Appeal Judgement, para. 81; Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004 [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004]], paras 10, 17, referring to Tadić Appeal Judgement, paras 188, 193.

[4] See Stanišić Appeal Brief, paras 356-358, 361-366.

[5] Popović et al. Appeal Judgement, para. 1672, referring to Đorđević Appeal Judgement, para. 81; Martić Appeal Judgement, para. 80; Brđanin Appeal Judgement, para. 405. See Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004, paras 14-25. In this regard, the Appeals Chamber also recalls that “it is not required to demonstrate that every possible combination between crime and mode of liability be explicitly allowed by, or have precedents in, customary international law” (Đorđević Appeal Judgement, para. 81 (emphasis omitted)).

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Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

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.

[1] Stanišić and Župljanin Appeal Judgement, para. 958; Karemera and Ngirumpatse Appeal Judgement, para. 634; Šainović et al. Appeal Judgement, para. 1557; Ntakirutimana Appeal Judgement, para. 467.

[2] Prlić et al. Appeal Judgement, para. 3022; Popović et al. Appeal Judgement, para. 1432; Šainović et al. Appeal Judgement, paras. 1061, 1272, 1525, 1557, 1558; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009], para. 18. The ICTR Appeals Chamber has held that the ICTY jurisprudence on the third form of joint criminal enterprise should be applied to the interpretation of the principles on individual criminal responsibility under the ICTR Statute. See Ntakirutimana Appeal Judgement, para. 468. See also Karemera and Ngirumpatse Appeal Judgement, para. 634.

[3] See [Karadžić Appeal Judgement] paras. 13, 119.

[4] Stanišić and Župljanin Appeal Judgement, para. 968.

[5] Stanišić and Župljanin Appeal Judgement, paras. 598, 974, 975; Popović et al. Appeal Judgement, paras. 1437-1443, 1674; Đorđević Appeal Judgement, paras. 33, 38, 39, 50-53, 83; Čelebići Appeal Judgement, para. 24.

[6] This joint case involved two separate appellants who had been convicted of murder on the basis of “parasitic accessory liability”, after a co-defendant had killed the victim. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3. In the case of Jogee, he had been vocally encouraging the principal who subsequently stabbed the victim to death. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, para. 102. The judge directed the jury that Jogee was guilty of murder if he took part in the attack by encouraging the principal and realised that it was possible that his co-defendant might use the knife with intent to cause serious harm. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3, 104. In the case of Ruddock, liability was based on his participation in a robbery during which the principal cut the victim’s throat. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 108, 109. The judge directed the jury that the prosecution had to prove a common intention to commit the robbery which included a situation in which Ruddock knew that there was a possibility that the principal might intend to kill the victim. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3, 114. The Supreme Court unanimously set the appellants’ convictions aside and corrected the common law on “parasitic accessory liability” by holding that the proper mental element for establishing such liability is intent to assist or encourage and that foresight is simply evidence of such intent. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 79, 83, 87, 89, 90, 98, 99.

[7] Šainović et al. Appeal Judgement, para. 1260; Krajišnik Appeal Judgement, para. 662; Kvočka et al. Appeal Judgement, paras. 79, 80; Vasiljević Appeal Judgement, para. 102.

[8] Tadić Appeal Judgement, paras. 194-226.

[9] Tadić Appeal Judgement, para. 228.

[10] Tadić Appeal Judgement, para. 229.

[11] Tadić Appeal Judgement, paras. 194-226.

[12] See also Tadić Appeal Judgement, paras. 225, 226.

[13] Tadić Appeal Judgement, para. 225.

[14] Tadić Appeal Judgement, para. 225.

[15] See HKSAR v. Chan Kam-Shing [2016] HKCFA 87, paras. 32, 33, 40, 58, 60, 62, 71, 98; Miller v. The Queen, Smith v. The Queen, Presley v. The Director of Public Prosecutions [2016] HCA 30, para. 43.

[16] Tadić Appeal Judgement, para. 225 (“in the area under discussion [concerning the third form of joint criminal enterprise], national legislation and case law cannot be relied upon as a source of international principles or rules, under the doctrine of the general principles of law recognised by the nations of the world: for this reliance to be permissible, it would be necessary to show that most, if not all, countries adopt the same notion of common purpose. More specifically, it would be necessary to show that, in any case, the major legal systems of the world take the same approach to this notion. The above survey shows that this is not the case.”).

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