1615. The Appeals Chamber recalls that it has previously held that the participation of an accused in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] Moreover, it has previously held that “the fact that [the] participation [of an accused] amounted to no more than his or her ‘routine duties’ will not exculpate the accused”.[2] […]

The Trial Chamber found that the Appellant was liable under JCE III for murder as a crime against humanity. At the same time, the Trial Chamber, without providing any further reasons, held that “in the circumstances of [the] killings arising from a JCE to Forcibly Remove – encompassing forcible transfer as other inhumane acts constituting a crime against humanity – his criminal responsibility is for murder as a crime against humanity and not as a war crime”. See para. 1710. The Appeals Chamber considered that the Trial Chamber’s scant reasoning as to why it acquitted the Appellant for war crimes suggests that the Trial Chamber required that the category of the JCE III crime must match that of the JCE I crime. See para. 1713.

1713. […] [T]he jurisprudence of the Tribunal does not require the category of the JCE I crime and the JCE III crime to match.[1] […]

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 considered the mens rea requirement of JCE and, in particular, its application to omissions and whether there is a requirement of intent as to result.

139. As noted above,[1] the Trial Chamber did not convict Martić for his failure to intervene against the perpetrators of crimes committed against non-Serbs. Indeed, the Trial Chamber referred to Martić’s knowledge of and reaction to crimes committed against the non-Serb population, among other factors, to establish that the mens rea requirement for the JCE had been met.[2]

140. The Appeals Chamber notes that the issue of whether the Trial Chamber imposed something akin to an obligation of result upon Martić is of limited relevance to the issue of his mens rea. Whether or not Martić had an obligation of result or to intervene against the perpetrators of crimes committed against non-Serbs is unrelated to the issue of his knowledge of the existence of such crimes and his disposition towards them and the non-Serb population generally.

74. […] the Appeals Chamber cannot find any merit in the Appellant’s argument that the Indictment fails to refer to any sort of “organization” among these individuals. It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously.[1] Since “organization” is not an element of JCE, it need not be pleaded in the Indictment.

77. The Appeals Chamber recalls that while the JCE categories are mutually incompatible to the extent that a defendant may not be convicted of multiple categories based on the same conduct, an indictment may charge a defendant cumulatively with multiple categories.[2] The Appeals Chamber notes that the Appellant was convicted for his participation in a JCE based on the first category, and therefore restricts its inquiry to whether he was put on notice that the Prosecution intended to rely on that specific category.[3] In this regard, the Appeals Chamber recalls that the three categories of JCE vary only with respect to the mens rea element, not with regard to the actus reus.[4] Accordingly, an accused will have sufficient notice of the category of JCE with which he is being charged where the indictment pleads the mens rea element of the respective category.

see also “Other Issues of Particular Interest” below citing para. 78 for application to the circumstances of the case.

296. The Appeals Chamber agrees with the Prosecution that physical presence at the time a crime is committed by the physical perpetrator is not required for liability to be incurred by a participant in a JCE.[1] However, as conceded by the Prosecution,[2] it may be taken as an indicator of a co-perpetrator’s contribution. Here, the Trial Chamber considered that there was “no direct evidence of the presence of Simba” at Cyanika Parish.[3] This appears to have been relevant primarily as a basis for the Trial Chamber’s finding that there was no evidence to support the idea that he shared the intent to participate in the common purpose of killing Tutsi there.[4] After finding generally that a common purpose existed to kill Tutsi at the three sites, it found that the Appellant shared the common purpose of killing Tutsi at Murambi Technical School and Kaduha Parish, but expressed its doubt that he equally shared the common purpose of killing Tutsi at Cyanika Parish.[5] As explained by the Trial Chamber, this doubt arose from the fact that there was “no direct evidence linking the Appellant to Cyanika Parish or indicating that he knew and accepted that it would also form part of the operation”.[6] It is apparent from this language that the Trial Chamber’s consideration of this issue focused on his intent to participate in the common purpose to kill the Tutsi at this site.[7] Therefore the Trial Chamber’s inquiry was broader than mere physical presence. The Appeals Chamber sees no error in this approach.

The Appeals Chamber addressed the issue of vagueness of an indictment following the principles laid out in the Kupreškić Appeal Judgement. The Appeals Chamber reaffirmed that the Prosecution should only plead the modes of responsibility on which it intends to rely, and that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment. Following ICTY and ICTR jurisprudence, the Appeals Chamber held that the mode of liability of joint criminal enterprise must be specifically pleaded in an indictment. The Appeals Chamber stressed that if the Prosecution is relying on the mode of liability of joint criminal enterprise, it is not sufficient for an indictment to charge an accused for “committing” the crimes in question under Article 7(1) of the Statute. It is not sufficient for the generic language of an indictment to encompass the possibility that joint criminal enterprise is being charged. See paragraphs 21 and 22.

21. The practice of both the International Tribunal and the ICTR requires that the Prosecution plead the specific mode or modes of liability for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from the practice of simply restating Article 7(1) of the Statute unless it intends to rely on all of the modes of liability contained therein, because of the ambiguity that this causes.[2] When the Prosecution is intending to rely on all modes of responsibility in Article 7(1), then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective.[3]  The Appeals Chamber further reaffirms that the Prosecution should only plead the modes of responsibility on which it intends to rely,[4] and considers that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment.[5]

22. Similarly, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the said term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both.[6] It is not enough for the generic language of an indictment to “encompass” the possibility that joint criminal enterprise is being charged.[7] The Appeals Chamber reiterates that joint criminal enterprise must be specifically pleaded in an indictment.[8] Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute; such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility.[9] Also, if the Prosecution relies on this specific mode of liability, it must plead the following material facts: the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants in the enterprise, and the nature of the accused’s participation in the enterprise.[10] In order for an accused charged with joint criminal enterprise to fully understand the acts he is allegedly responsible for, the indictment should also clearly indicate which form of joint criminal enterprise is being alleged.[11] The Appeals Chamber considers that failure to specifically plead joint criminal enterprise in the indictment in a case where the Prosecution intends to rely on this mode of liability will result in a defective indictment.[12]

The Appeals Chamber reiterated that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. See paragraph 24.

161. In cases where the Prosecution intends to rely on a theory of joint criminal enterprise, it must plead the purpose of the enterprise, the identity of its participants, the nature of the accused’s participation in the enterprise, and the period of the enterprise. The indictment should also clearly indicate which form of joint criminal enterprise is being alleged. Failure to specifically plead joint criminal enterprise, including the supporting material facts and the category, constitutes a defect in the indictment.

162. In the Simba Appeal Judgement, the Appeals Chamber determined that an indictment properly pleaded the identity of the participants by identifying the physical perpetrators by general category, such as Interahamwe, and then further identifying them with geographic and temporal details related to each massacre site.[4] The Indictment in the present case provides the same degree of specificity when the reference to the Bugarama Interahamwe in paragraph 4 of the Indictment is read together with paragraphs 13 and 14, alleging that Munyakazi and the Bugarama Interahamwe attacked and killed Tutsi civilians at Shangi and Mibilizi parishes, respectively, on 29 and 30 April 1994. Accordingly, the Trial Chamber erred in law in concluding that the reference to the Bugarama Interahamwe was too vague and in limiting its consideration of the evidence to only the named participants.

227. In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:

i. A plurality of persons. They need not be organised in a military, political or administrative structure, as is clearly shown by the Essen Lynching and the Kurt Goebell cases.

ii. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute.  There is no necessity for this plan, design or purpose to have been previously arranged or formulated.  The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

iii. Participation of the accused in the common design involving 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 those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.

In paragraphs 185 to 219 the Appeals Chamber conducted an analysis in order to ascertain whether criminal responsibility for participating in a common criminal purpose falls within the ambit of Article 7(1) of the Statute. In paragraphs 195–219 national case-law is reviewed so as to identify customary international law. The Appeals Chamber concluded:

220. In sum, the Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal. As for the objective and subjective elements of the crime, the case law shows that the notion has been applied to three distinct categories of cases. First, in cases of co-perpetration, where all participants in the common design possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, with intent). Secondly, in the so-called “concentration camp” cases, where the requisite mens rea comprises knowledge of the nature of the system of ill-treatment and intent to further the common design of ill-treatment. Such intent may be proved either directly or as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy.  With regard to the third category of cases, it is appropriate to apply the notion of “common purpose” only where the following requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal purposes of that enterprise; and (ii) 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. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have been able to predict this result.  It should be noted that more than negligence is required.  What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk.  In other words, the so-called dolus eventualis is required (also called “advertent recklessness” in some national legal systems).

At paragraphs 221 to 225, the Appeals Chamber then considered international treaties, case-law and legislation. It concluded:

226. The Appeals Chamber considers that the consistency and cogency of the case law and the treaties referred to above, as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general international criminal law and in national legislation, warrant the conclusion that case law reflects customary rules of international criminal law.

325. The Appeals Chamber recalls that in order to find an individual liable for the commission of a crime through a basic joint criminal enterprise:

[a] trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime […] did in fact take place. Where the principal perpetrator is not shown to belong to the [joint criminal enterprise], the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the [joint criminal enterprise] (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise; and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible.[1]

609. […] The Appeals Chamber recalls that JCE liability requires “the existence of a common purpose which amounts to, or involves, the commission of a crime” and that the common purpose need not be previously arranged or formulated; it may materialise extemporaneously.[1] Thus, while the existence of a common purpose at the time of the crimes is one of the elements of JCE liability, the date of its formation is not.[2] […]

1177. The jurisprudence of the Tribunal has held that, in order for an accused to be held responsible for a crime committed pursuant to JCE liability, it must be established that he or she performed “acts that in some way [were] directed to the furthering of the common plan or purpose” of the JCE.[1] In this regard, the Appeals Chamber recalls its conclusion that the Trial Chamber’s finding that a common purpose existed beyond reasonable doubt “during the time of the crimes alleged in the Indictment”[2] concerned the period starting from 24 March 1999.[3] The Appeals Chamber further notes that, based on the Trial Chamber’s findings, both the arming of the non-Albanian population and the disarming of the Kosovo Albanian population were carried out earlier than 24 March 1999.[4] Moreover, the Trial Chamber’s finding on Pavković’s involvement in the process of arming and disarming was based on evidence concerning his conduct in 1998.[5] In these circumstances, it was unreasonable for the Trial Chamber to find that Pavković “acted […] to further the common purpose” through his enthusiastic involvement in, and support for, the process of arming and disarming and thereby finding that he contributed to the common purpose of the JCE prior to its existence.[6]

See also paras 1178, 1445.

1014. The Appeals Chamber is concerned that, in relying on Šainović’s knowledge of events which occurred in 1998 [to find that Šainović shared the intent to forcibly displace the Kosovo Albanian population in 1999], the Trial Chamber used language suggesting that it might have erred in law in relation to the mens rea standard for JCE I. In particular, the Trial Chamber’s reference to Šainović’s ability “to predict” the situation in 1999[1] resembles the foreseeability standard embedded in the mens rea for JCE III.[2] Pursuant to JCE I, the accused must share the intent for the commission of the crimes alleged in the Indictment and not merely foresee their occurrence.[3] In assessing whether the Trial Chamber indeed applied an erroneous mens rea standard, the Appeals Chamber will consider the broader context of the Trial Chamber’s findings.

[…]

1016. Further, to what extent in relation to the mens rea for JCE I a trial chamber may rely on the accused’s knowledge of the commission of past crimes, as circumstantial evidence among others, will necessarily depend on the circumstances of the particular case. The Appeals Chamber considers that relevant evidence may include the type of crimes that were committed, the circumstances of their commission, the identity of the perpetrators, and the geographical and temporal scope. […].

See also paras 1019, 1199, 1470.

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]

79. The Indictment alleges that JCE members, including Karadžić, used others to carry out the crimes forming part of the JCE’s common purpose, including members of the Bosnian Serb forces.[1] The Appeals Chamber recalls that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member—when using the principal perpetrators—acted in accordance with the common objective.[2] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[3] The Appeals Chamber further recalls that the relevant question in the context of JCE I liability is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose; it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that the non-JCE member knew of the existence of the JCE.[4] Therefore, in accordance with the allegations underlying Count 1 of the Indictment, it is the genocidal intent of Karadžić and other alleged JCE members, not the physical perpetrators of the underlying alleged genocidal acts, that is determinative for purposes of JCE I.

11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

463. In the jurisprudence of the ICTY three categories of joint criminal enterprise have been identified as having the status of customary international law.[1] The first category is a “basic” form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention.[2] An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill. This form of joint criminal enterprise is the only one relevant to the present case and will be the focus thereafter.[3]

464. The second category is a “systemic” form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment.[4] An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise.

465. The third category is an “extended” form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose.[5] An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians.

466. For joint criminal enterprise liability to arise an accused must act with a number of other persons. They need not be organised in a military, political or administrative structure.[6] There is no necessity for the criminal purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts.[7] […]

467. The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).[1] The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment.[2] Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or, in any event, to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk”[3] – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise.

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.

The Trial Chamber had held that a conviction for a crime under the JCE doctrine requires that the person actually committing the actus reus of the crime (“principal perpetrator”) is a member of the same criminal enterprise. The Appeals Chamber reversed this finding and found:

410.    […] that what matters in a first category JCE is not whether the person who carried out the actus reus of a particular crime is a member of the JCE, but whether the crime in question forms part of the common purpose.[1] […]

411.    When the accused, or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit 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 by one or more of the persons used by him (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; 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.

[…]

413.    […] [T]he Appeals Chamber finds that, to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2]

25.     Joint criminal enterprise is different from membership of a criminal enterprise which was criminalised as a separate criminal offence in Nuremberg and in subsequent trials held under Control Council Law No 10.[1]  As pointed out by the United Nations War Crimes Commission, what was to be punished in relation to the latter was “no mere conspiracy to commit crimes but a knowing and voluntary membership of organisations which did in fact commit crimes, and those on a wide scale”.[2]  No such offence was included in the Tribunal’s Statute.  The Secretary-General made it clear that only natural persons (as opposed to juridical entities) were liable under the Tribunal’s Statute,[3] and that mere membership in a given criminal organization would not be sufficient to establish individual criminal responsibility:

The question arises, however, whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this Statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups.[4]

26.     Criminal liability pursuant to a joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.  […]

At the end of its discussion, the Appeals Chamber summarised the requirements for a conviction under the JCE doctrine. Apart from the requisite intent (para. 429), these requirements were enumerated as follows:

430.    […] A trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime (or, for convictions under the third category of JCE, the foreseeable crime) did in fact take place.[1] Where the principal perpetrator is not shown to belong to the JCE, the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the JCE (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise;[2] and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial,[3] it should at least be a significant contribution to the crimes for which the accused is to be found responsible.[4]

The Trial Chamber found that deportation, forcible transfer and persecution based thereon, were the original crimes of the common objective of the JCE 1. It further held that other, expanded crimes were added to the JCE, after leading members of the JCE became aware of them, accepted them and came to intend them. The Appeals Chamber was not satisfied, however, that the Trial Chamber found that Krajišnik incurred liability under JCE 3 for the first commissions of these expanded crimes.

167. The Appeals Chamber first notes that, in the Indictment, the Prosecution pled Krajišnik’s liability pursuant to JCE Category 1 and alternatively, pursuant to JCE Category 3.[1] However, the Appeals Chamber is not persuaded by the submission that the Trial Chamber found that Krajišnik incurred responsibility pursuant to JCE Category 3. First, although the Trial Chamber raised the question of whether Krajišnik incurred liability under JCE Category 3 for some of the crimes,[2] it never returned to answer that question. Instead, it focused its analysis on whether the expanded crimes became incorporated into the common objective,[3] thereby resulting in responsibility for Krajišnik under JCE Category 1 once they had been incorporated.[4] Had the Trial Chamber intended to find Krajišnik liable for the expanded crimes under JCE Category 3 before they had become part of the common objective, it would, at the very least, have made some distinction between the first commissions of the expanded crimes (when they were not yet part of the common objective) and their commission after they had become part of the common objective. However, the Trial Chamber made no such distinction. This indicates that the Trial Chamber found Krajišnik responsible under JCE Category 1 alone, and not under JCE Category 3.

168. Likewise, the other findings of the Trial Chamber invoked by the Prosecution do not reveal that it found Krajišnik criminally responsible under JCE Category 3. The Trial Chamber found that “even before the Bosnian-Serb take-overs began in April 1992, the Accused and Radovan Karadžić were aware that an armed conflict between the ethnic groups would have devastating consequences”.[5] This finding falls short, however, of demonstrating Krajišnik’s mens rea for JCE Category 3. Similarly, the Trial Chamber’s finding that “the Accused’s criminal responsibility arises with the attack and crimes committed in Bijeljina municipality in the beginning of April 1992”[6] does not show that the commission of expanded crimes was a natural and foreseeable consequence of the common objective. Its broad, summary finding in paragraph 1119 of the Trial Judgement that Krajišnik “had the mens rea required for the commission of the crimes which the Chamber, in part 5 of this judgement, has found were committed” does not address whether and when his liability arose under JCE Category 1 or JCE Category 3.[7] The preceding paragraphs 1110 to 1118 of the Trial Judgement do not clarify the matter, as they only generally describe how JCE members became aware of the commission of the expanded crimes “during the course of the indictment period”.[8] The Trial Chamber also found that “[t]ake-overs, killings, detention, abuse, expulsions, and appropriation and destruction of property […] were launched in early April 1992, and were repeated throughout the claimed territories in the months to come. This was the Bosnian-Serb leadership’s goal”.[9] However, this finding was made in the context of rejecting the Prosecution’s interpretation of the “Six Strategic Goals”,[10] and before the Trial Chamber had even reached the question of whether Krajišnik incurred liability pursuant to JCE Category 3.

169. Thus, having considered the Trial Judgement as a whole, the Appeals Chamber is not satisfied that the Trial Chamber made a finding that Krajišnik incurred criminal liability under JCE Category 3 for the first commissions of the expanded crimes, that is, before they became part of the common objective. Instead, the Trial Chamber only held Krajišnik responsible under JCE Category 1 for their subsequent commissions, that is, once they had become part of the JCE.

Furthermore, the Trial Chamber made insufficient findings as to when the expanded crimes became incorporated into the common objective. Hence, Krajišnik’s convictions for all expanded crimes were quashed.

171. The Appeals Chamber notes that in order to impute responsibility to leading JCE members, including Krajišnik, for the expanded crimes, the Trial Chamber was therefore required to make findings as to (1) whether leading members of the JCE were informed of the crimes, (2) whether they did nothing to prevent their recurrence and persisted in the implementation of this expansion of the common objective, and (3) when the expanded crimes became incorporated into the common objective. It is apparent that the Trial Chamber only made scarce findings in relation to each of these requirements.

172. The Appeals Chamber first notes that the Trial Judgement’s section on the common objective[11] offers only a few “illustrative” factual findings[12] on when “leading JCE members” – a term nowhere defined in the Trial Judgement[13] – became “aware” of the commission of expanded crimes.[14] Furthermore, the Trial Chamber did not make any findings in accordance with its prior statement that in order for expanded crimes to be included in the common objective, “leading JCE members” not only had to be informed of them but, additionally, took no effective measures to prevent their recurrence, and persist in the implementation of the common objective, thereby coming to intend these expanded crimes.

173. Even more significantly, while the Trial Chamber characterised “the common objective [of the JCE] as fluid in its criminal means”,[15] it did not explicitly find at which specific point in time the expanded crimes became part of the common plan and whether the JCE members had any intent in respect thereof. For instance, the Trial Chamber stated that the murder of civilians “was soon incorporated as an intended crime”,[16] that the Bosnian-Serb leadership “very soon came not only to accept killings […] but also to encourage them”,[17] and that the “appropriation of property […] had become a means of forcible ethnic recomposition”.[18] The Trial Chamber only generally found that these crimes “came to redefine the criminal means of the JCE’s common objective during the course of the indictment period.”[19] Similarly, in those instances where the Trial Chamber referred to a particular month in which leading JCE members became aware of the commission of expanded crimes, it did not specify the date when this happened or whether Krajišnik was among the leading JCE members who gained such awareness, let alone when leading JCE members went from being merely aware of the crime to intending it.

174. Furthermore, with respect to the “local component” of the JCE,[20] the Trial Chamber did not make any findings when members of this group became aware of the expanded crimes. Consequently, the Trial Chamber did not find at what point in time the expanded crimes became incorporated in the common objective through the involvement of the members of the local component of the JCE.

175. In light of these scarce – or entirely absent – findings, the Appeals Chamber is not able to conclude with the necessary preciseness how and at which point in time the common objective of the JCE expanded to include other crimes that originally were not included in it, and, consequently, on what basis the Trial Chamber imputed those expanded crimes to Krajišnik.

176. Neither the Appeals Chamber nor the Parties can be required to engage in speculation on the meaning of the Trial Chamber’s findings – or lack thereof – in relation to such a central element of Krajišnik’s individual criminal responsibility as the scope of the common objective of the JCE. Aside from merely stating that the common objective was “fluid”,[21] the Trial Chamber was required to precisely find how and when the scope of the common objective broadened in order to impute individual criminal responsibility to Krajišnik for those crimes that were not included in the original plan, i.e the expanded crimes.

177. In conclusion, the Appeals Chamber finds that the Trial Chamber committed a legal error[22] in failing to make the findings necessary for Krajišnik’s conviction in relation to the following expanded crimes, which were not included in the original common objective of the JCE.

The Appeals Chamber considered the link between Krajišnik and other JCE members and the principal perpetrators of crimes who were not proven to be members of the JCE.

225. In the Brđanin Appeal Judgement, the Appeals Chamber held that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member – when using the principal perpetrators – acted in accordance with the common objective.[1] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[2]

226. The establishment of a link between the crime in question and a member of the JCE is a matter to be assessed on a case-by-case basis.[3] Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime. However, it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew of the existence of the JCE; what matters in JCE Category 1 is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose.[4]

235. The Appeals Chamber recalls its finding in Brđanin that all JCE members are responsible for a crime committed by a non-JCE member if it is shown that the crime can be imputed to at least one JCE member, and that this JCE member – when using the non-JCE member – acted in accordance with the common objective.[5]

236. At paragraphs 883(ii), 1082 and 1086 of the Trial Judgement, the Trial Chamber held that a JCE member could incur liability for crimes committed by other JCE members or by principal perpetrators “procured” by a JCE member to commit crimes which further the common objective. The Appeals Chamber is satisfied that this standard corresponds in substance to the standard outlined in the Brđanin Appeal Judgement which was rendered after the Trial Judgement in the present case.[6] Amicus Curiae therefore fails to show an error by the Trial Chamber in this respect.

The Appeals Chamber held, however, that the Trial Chamber, in relation to the majority of crimes, erroneously failed to make findings on the link between the principal perpetrators and the members of the JCE:

237. The Appeals Chamber will now analyse whether the Trial Chamber made the necessary factual findings establishing links between the principal perpetrators of the crimes and the JCE members identified above;[7] in other words, whether the JCE members used the principal perpetrators to commit crimes in furtherance of the common purpose in the sense that the crimes can be imputed to the JCE members.[8] At the outset, the Appeals Chamber observes that the Trial Chamber did not explicitly state that JCE members procured or used principal perpetrators to commit specific crimes in furtherance of the common purpose. The Appeals Chamber finds that, while the Trial Chamber should have made such a finding, this omission, in the circumstances of this case, does not as such invalidate the Trial Judgement,[9] because the Trial Chamber otherwise established a link between JCE members and principal perpetrators of crimes forming part of the common objective. However, in relation to a large number of principal perpetrators, the Trial Chamber did not reach any definite finding on their link with one of the JCE members. The Appeals Chamber will take this into account when reviewing the Trial Chamber’s findings. This analysis must be conducted on the basis of the Trial Judgement as a whole. […]

See also, paras 598 and 714.

697. […] The Appeals Chamber finds that the Trial Chamber did not hold that Krajišnik’s mere knowledge of crimes was sufficient to establish his mens rea. Instead, the Trial Chamber found that

[t]he information the Accused received during this period is an important element for the determination of his responsibility, because knowledge combined with continuing participation can be conclusive as to a person’s intent.[1]

JCE counsel fail to show that the Trial Chamber erred in this respect.

707. With regard to Krajišnik’s mens rea, the Appeals Chamber has already found that the Trial Chamber correctly required proof that “the JCE participants, including the accused, had a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out.”[2] Under this standard, there is no room to argue, as JCE counsel do,[3] that JCE liability can attach for mere adherence to a lawful objective. To the extent they claim that JCE liability requires an agreement, additional to the common purpose, between the JCE participants to commit the crimes,[4] this argument is erroneous in law.[5] The “bridge”, to use JCE counsel’s term,[6] between the JCE’s objective and Krajišnik’s criminal liability, as far as his mens rea is concerned, consisted of the shared intent that the crimes involved in the common objective be carried out. Such intent was both pleaded in the Indictment[7] and required by the Trial Chamber.[8] JCE counsel’s additional, bare assertion that the evidence regarding Krajišnik’s objective for Sarajevo is insufficient for criminal liability is dismissed.[9]

71.     The Appeals Chamber notes that, although the French version of the Tadić Appeals Judgement faithfully reflects the meaning given by the Appeals Chamber to the term accomplice depending on the context, the same cannot be said of the French version of the Judgment under appeal. Thus, in paragraph 77 of the French version of the Judgment, even though footnote 230 specifies that an accomplice in a joint criminal enterprise is a person who shares the intent to carry out the enterprise and whose acts facilitate the commission of the agreed crime,[1] the term accomplice was translated by complice instead of coauteur in the body of the paragraph.

72.     The Appeals Chamber will now consider the question whether or not the Trial Chamber erred in its use of the terms accomplice and co-perpetrator, that is “coauteur”, with regard to the participants in a joint criminal enterprise other than the principal offender. The Appeals Chamber notes that, in so doing, the Trial Chamber used the terminology of the Tadić Appeals Judgement. The Trial Chamber noted in paragraph 77 of the Judgment under appeal that “for convenience […] the Trial Chamber will adopt the expression ‘co-perpetrator’ (as meaning a type of accomplice) when referring to a participant in a joint criminal enterprise who was not the principal offender.” Footnote 230 then clarifies that an accomplice in a joint criminal enterprise is a person who shares the intent to carry out the enterprise and whose acts facilitate the commission of the agreed crime. The Appeals Chamber holds that the Trial Chamber has not therefore erred in its use of the terms accomplice and co-perpetrator.

41. […] The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective.

42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.[1]

89. The Appeals Chamber notes that in the Vasiljević Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.[1]

90. Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.

91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself.[2] Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.[3]

99. Appellant Kvočka appears to argue that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable.[1] The Appeals Chamber disagrees. A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadić Appeals Chamber explained, “[a]lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question.”[2] This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case.

106. [The Appeals Chamber] notes that it has repeatedly confirmed the distinction between intent and motive:

The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadic appeal judgement the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law’.[1]

Shared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise.[2] Therefore, the Appellants’ argument in this regard is rejected.

112. The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved.[1] Nor is the participant in a joint criminal enterprise required to be physically present when and where the crime is being committed.[2]

113. While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence. […].

182. The Appeals Chamber wishes to point out that, although commonly referred to as the “category known as        concentration camps”, the second category of joint criminal enterprise, known as systemic, covers all
       cases relating to an organised system with a common criminal purpose perpetrated against the detainees.
       This concept of criminal responsibility has been shaped by the case-law derived from concentration camp
       cases from the Second World War, but reference to the concentration camps is circumstantial and in no
       way limits the application of this mode of responsibility to those detention camps similar to concentration
       camps.[1]

276.    […] the Appeals Chamber concurs with the finding of the Trial Chamber that a participant in a joint criminal enterprise would not need to know of each crime committed in order to be criminally liable.[1] Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently is enough in this regard. […]

109. […] The mens rea of a systemic joint criminal enterprise requires proof of the participant’s personal knowledge of the system of ill-treatment, as well as the intent to further this system of ill-treatment.[1]

119. […] In general, in the case of a third category joint criminal enterprise, the crimes must be committed by members of the joint criminal enterprise.[1] […]

120. Furthermore, the Appeals Chamber finds that Haradin Bala, even if he were a member of a systemic joint criminal enterprise, could not be convicted for having used “outsiders” to commit crimes in the camp. In this context, the Appeals Chamber recalls its finding in Brđanin that

to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2]

The Appeals Chamber notes, however, that it was neither argued at trial nor on appeal whether Haradin Bala could incur systemic joint criminal enterprise liability for crimes committed by non-members of the enterprise. Furthermore, the Appeals Chamber recalls its finding in Brđanin that it would be unfair to enter new convictions in that case on the basis that principal perpetrators do not need to be members of the joint criminal enterprise, as this was not litigated at trial.[3] This reasoning also applies in the present case.

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] […]

77. The Appeals Chamber recalls that the actus reus for the first and third categories of JCE liability consists of: (i) a plurality of persons; (ii) the existence of a common plan, design, or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (iii) the participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute.[1] The mens rea element for the first category of JCE liability is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).[2] For the third category, it is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the JCE or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case: (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group; and (ii) the accused willingly took that risk.[3]

193.    […] Thus, there is no requirement that the plan or purpose must be previously arranged or formulated. Accordingly, while the fact of “having met physically or on telephone to undertake a common operation” may be a relevant factor to be considered, it is not constitutive of the actus reuselement required for criminal responsibility pursuant to the common purpose doctrine. […]

630.   The Appeals Chamber recalls that an individual’s high-ranking position, coupled with the open and notorious manner in which criminal acts unfold, can provide a sufficient basis for inferring knowledge of the crimes.[1] […]

153.   The Appeals Chamber also finds no merit in Ngirumpatse’s contention that the Trial Chamber failed to establish any connection between him and the various criminal acts or other participants in the joint criminal enterprise. In this respect, the Appeals Chamber notes that the Trial Chamber was not required to find that Ngirumpatse contributed to each criminal act, but rather that he made a significant contribution to the common purpose and that each of the crimes for which he was held responsible formed part of that purpose.[1] It is immaterial whether Ngirumpatse was out of the country while some of the criminal acts were perpetrated. A participant in a joint criminal enterprise is not required to be physically present when and where the crime is being committed.[2] […]

109. The Appeals Chamber considers that Stanišić’s argument that the Trial Chamber failed to apply the correct legal standard to his “purported omissions”[1] is based on the premise that each failure to act assessed in the context of joint criminal enterprise liability must, per se, meet the legal conditions set out in the Tribunal’s case law in relation to commission by omission. In this respect, the Appeals Chamber recalls that although participation in a joint criminal enterprise – which is based on an accused’s significant contribution to the common criminal purpose – is a form of “commission” under Article 7(1) of the Statute, this is a mode of liability distinct from commission by omission and is characterised by different objective and subjective elements.[2]

110. In this respect, the Trial Chamber properly held that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[3] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case‑by‑case basis.[5] Furthermore, the Appeals Chamber recalls that the relevant failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[6] That is, one’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs acts (or fails to perform acts) that in some way contribute significantly to the furtherance of the common purpose.[7] In light of the above, contrary to Stanišić’s assertion, when establishing an accused’s participation in a joint criminal enterprise through his failure to act, the existence of a legal duty to act deriving from a rule of criminal law is not required.[8] The nature of the accused’s duty and the extent of his ability to act are simply questions of evidence and not determinative of joint criminal enterprise liability.[9]

111. In the present case, as part of its factual determination of Stanišić’s contribution to the JCE, the Trial Chamber considered, together with his other actions,[10] his failure to discipline the RS MUP personnel who had committed crimes and to protect the civilian population,[11] despite his duties to do so, together with his ability, as the highest authority, to investigate and punish those who had committed crimes.[12] The Appeals Chamber observes that in the jurisprudence of the Tribunal, a failure to intervene to prevent recurrence of crimes or to halt abuses has been taken into account in assessing an accused’s contribution to a joint criminal enterprise and his intent where the accused had some power and influence or authority over the perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.[13] Therefore, Stanišić has not shown that the Trial Chamber applied an erroneous legal standard when it considered instances of his failures to act in assessing whether he contributed to the JCE.

[…]

733. Turning to Župljanin’s arguments in relation to his capacity or ability to act, based on the same reasoning, the Appeals Chamber finds no merit in Župljanin’s attempt to conflate the Appeals Chamber’s statement that the objective element of commission by omission requires, at a minimum, an “elevated degree of ‘concrete influence’”,[14] with the significant contribution requirement of joint criminal enterprise liability.[15] For the same reason, the Appeals Chamber dismisses Župljanin’s argument that the Trial Chamber failed to make findings or particularised findings as to whether “he had such a high degree of control over his subordinates that his ‘omission’ could count as part of the actus reus of commission”.[16]

See also paras 731-732, 734.

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.

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.

18. […] While the public interest of protecting the integrity of proceedings through the effective prosecution of offences against the administration of justice cannot be underestimated, it cannot be allowed to undermine the Accused’s rights guaranteed by the principle of legality, which requires sufficient precision and clarity in prescribing modes of criminal liability.[1]

[…]

21. […] [I]n the absence of clear evidence that the doctrine of joint criminal enterprise applies to contempt in customary international law or as a general principle of international law, [the Single Judge] was not satisfied that the Mechanism has jurisdiction over this form of liability for crimes committed in violation of Rule 90 of the Rules.[2] […] [T]he Prosecution’s submissions […] fail to demonstrate the existence of a general principle of law common to all major legal systems or otherwise show error in the Single Judge’s finding.[3]

193. […] [T]he Appeals Chamber further recalls that members of a joint criminal enterprise may be held responsible for crimes carried out by principal perpetrators, provided that the crimes can be imputed to at least one member of the joint criminal enterprise and that the latter – when using the principal perpetrators – acted in accordance with the common objective.[1]

529.   In convicting and sentencing Mladić for crimes under Article 7(1) of the ICTY Statute, the Trial Chamber stated that his superior responsibility was “encapsulated” within his joint criminal enterprise liability.[1] The Appeals Chamber considers that this statement on Mladić’s superior responsibility falls short of a reasoned opinion.[2] The Appeals Chamber recalls that a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused. In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[3] Notwithstanding, the Appeals Chamber considers that Mladić confuses superior responsibility under Article 7(3) of the ICTY Statute with abuse of authority as an aggravating factor in sentencing. These two issues are distinct and the consideration of abuse of an accused’s position of authority as an aggravating factor in sentencing does not require a finding of superior responsibility.[4] The Appeals Chamber therefore dismisses Mladić’s argument that the Trial Chamber should have made findings on the elements of Article 7(3) of the ICTY Statute in order to consider his abuse of authority as an aggravating factor in sentencing.[5]  

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.

684. […] [T]he Appeals Chamber recalls that it is not required that members of a joint criminal enterprise agree upon a particular form through which the forcible displacement is to be effectuated or that its members intend specific acts of coercion causing such displacement, so long as it is established that they intended to forcibly displace the victims.[1]