Legal basis for JCE

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Appeal Judgement - 15.07.1999 TADIĆ Duško

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.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo

655. In any event, the Appeals Chamber considers that JCE counsel advance no cogent reason[1] why it should depart from its holding that “the Statute provides, albeit not explicitly, for joint criminal enterprise as a form of criminal liability”.[2] First, they do not address the teleological interpretation of the Statute as applied by the Tribunal that extends jurisdiction over all those responsible for serious violations of international humanitarian law, including those who did not actually carry out the actus reus of the crimes, and that this may amount to “committing” under Article 7(1) of the Statute. Second, the fact that Articles 7(2) and 7(3) of the Statute apply to government officials and others who might be removed from the actual crime does not mean that these persons are exempted from other forms of liability under the Statute. Indeed, quite the contrary to JCE counsel’s claim, the Secretary-General’s Report explicitly called for individual criminal responsibility for “all persons who participate” in the planning, preparation or execution of crimes under the Statute.[3] As such, there is also no merit to JCE counsel’s argument that JCE “circumvents” Article 7(3) of the Statute. Finally, because JCE does not go beyond the Statute and forms part of custom as explained below, JCE counsel’s claim that the Judges “created” this form of liability fails.

659. The Appeals Chamber recalls that it provided a detailed reasoning for inferring the grounds for conviction in the WWII cases it cited in Tadić.[4] JCE counsel do not address this reasoning. The Appeals Chamber further recalls that both the Einsatzgruppen and Justice cases show that JCE apply to large-scale cases,[5] and that JCE is legally distinct from conspiracy and organisational liability.[6] JCE counsel address neither one of these holdings. Their further claim that the Tadić Appeals Chamber “molded” precedent to convict the accused is unsubstantiated. This sub-ground is dismissed.

662. The Appeals Chamber has consistently held that participation in a JCE is a form of “commission” under Article 7(1) of the Statute.[7] Although the facts of a given case might establish the accused’s liability under both JCE and other forms of liability under Article 7(1), the legal elements of JCE distinguish it from these other forms. In the first place, none of the other forms require a plurality of persons sharing a common criminal purpose. Moreover, whereas JCE requires that the accused intended to participate and contribute to such a purpose,[8] an accused may be found responsible for planning, instigating or ordering a crime if he intended that the crime be committed or acted with the awareness of the substantial likelihood that a crime would be committed.[9] In terms of actus reus, planning and instigating consists of acts “substantially contributing” to the perpetration of a certain specific crime[10] and ordering means “instructing” a person commit an offence.[11] By contrast, JCE requires that the accused contributes to the common purpose in a way that lends a significant contribution to the crimes.[12] The differences between JCE and aiding and abetting are well-established and need not be repeated here.[13] JCE counsel’s argument that JCE renders the other forms of liability under the Article 7(1) nugatory is thus without merit.

669. As a preliminary matter, the Appeals Chamber notes that Krajišnik did not challenge but, in fact, expressly recognised at trial that the fact that Tadić was rendered after his alleged acts took place does not lead to a conflict between JCE and the nullum crimen sine lege principle.[14] Therefore, as far as JCE counsel now argue that the Tadić Appeal Judgement violated that principle, Krajišnik may be deemed to have waived his right to bring this challenge on appeal.[15] In any event, JCE counsel fail to address the jurisprudence holding that the notion of JCE as established in Tadić does not violate the nullum crimen sine lege principle.[16]

670. Regarding JCE counsel’s challenge that the alleged “expansion” of JCE after Tadić violates the principle, which challenge Krajišnik did raise at trial,[17] the Appeals Chamber first recalls that when it interprets the JCE doctrine, it does not create new law. Instead, similarly to other provisions under the Statute, it merely identifies what the proper interpretation of that doctrine has always been, even though not previously expressed that way.[18] This does not contravene the nullum crimen sine lege principle, which

“does not prevent a court from interpreting and clarifying the elements of a particular crime.” Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.[19]

671. Turning to the present case, the Appeals Chamber notes that, although Tadić concerned a relatively low-level accused, the legal elements of JCE set out in that case remain the same in a case where JCE is applied to a high-level accused. Therefore, JCE counsel are wrong to speak about an “expansion” of JCE to cases such as the one of Krajišnik. Moreover, the Appeals Chamber considers that, while pronounced in relation to acts allegedly committed in 1999, its holding in the Ojdanić Decision on Joint Criminal Enterprise applies also to Krajišnik in this case:

Article 26 of the Criminal Law of the Federal Republic of Yugoslavia, coupled with the extensive state practice noted in Tadić, the many domestic jurisdictions which provide for such a form of liability under various names and which forms of liability run parallel to custom, and the egregious nature of the crimes charged would have provided notice to anyone that the acts committed by the accused […] would have engaged criminal responsibility on the basis of participation in a joint criminal enterprise.[20]

672. JCE counsel’s additional argument that the imposition of JCE liability is vulnerable to political influence is unsupported and dismissed. This sub-ground is dismissed.

See also Judge Shahabuddeen’s Separate Opinion annexed to the Appeals Judgement.

[1] Galić Appeal Judgement, para. 117; Aleksovski Appeal Judgement, para. 107.

[2] Ojdanić Decision on Joint Criminal Enterprise, para. 21. See also Tadić Appeal Judgement, paras 187-193.

[3] Tadić Appeal Judgement, para. 190, citing Secretary-General’s Report, para. 54.

[4] Tadić Appeal Judgement, paras 195-219; see more particularly paras 202-203, 208-209, 212-213.

[5] Brđanin Appeal Judgement, paras 422-423; Prosecutor v. André Rwamakuba, 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 (“Rwamakuba Appeal Decision”), para. 25.

[6] Ojdanić Decision on Joint Criminal Enterprise, paras 23, 25-26.

[7] E.g. Kvoèka et al. Appeal Judgement, paras 79-80; Tadić Appeal Judgement, paras 188; Ojdanić Decision on Joint Criminal Enterprise, para. 20.

[8] Kvočka et al. Appeal Judgement, paras 82-83. In the case of JCE Catergory 3, it must also have been foreseeable to the accused that a crime other than the one agreed upon in the common objective might be perpetrated by a member of the JCE, or 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 the accused willingly took that risk by joining or continuing to participate in the enterprise.

[9] Nahimana et al. Appeal Judgement, paras 479-481; Kordić and Čerkez Appeal Judgement, paras 30-32.

[10] Kordić and Čerkez Appeal Judgement, paras 26-27.

[11] Kordić and Čerkez Appeal Judgement, para. 28.

[12] Brđanin Appeal Judgement, para. 430; Kvočka et al. Appeal Judgement, paras 96-97.

[13] Kvočka et al. Appeal Judgement, paras 89-90; Vasiljević Appeal Judgement, para. 102.

[14] Defence Final Trial Brief, para. 134, referencing Ojdanić Decision on Joint Criminal Enterprise, para. 8.

[15] See Blaškić Appeal Judgement, para. 222; Niyitegeka Appeal Judgement, para. 200; Akayesu Appeal Judgement, para. 361; Furundžija Appeal Judgement, para. 174.

[16] Stakić Appeal Judgement, para. 101; Ojdanić Decision on Joint Criminal Enterprise, para. 41.

[17] Defence Final Trial Brief, para. 134(b).

[18] See Kordić and Čerkez Appeal Judgement, para. 310; Aleksovski Appeal Judgement, para. 135.

[19] Ojdanić Decision on Joint Criminal Enterprise, para. 38 (footnotes omitted).

[20] Ojdanić Decision on Joint Criminal Enterprise, para. 43 (footnote omitted).

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