43. […] The Appeals Chamber recalls that for conduct to entail criminal liability it must be possible for the individual to determine ex ante, based on the facts available to him, that the act is criminal. Both Appellants knew that the information was given by a witness with protective measures in place. Thus, the Trial Chamber correctly held that the Appellants had the necessary mens rea.

44. The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. It is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.[1]

738. The Appeals Chamber reiterates that persecution as a crime against humanity does not require that the underlying acts are crimes under international law.[1] A trial chamber does not need to establish the elements of the underlying acts, including the mens rea, even when the underlying act also constitutes a crime under international law. With respect to the mens rea, all that is required is establishing that the underlying act was deliberately carried out with discriminatory intent. […]

31. A person’s state of mind is no different to any other fact concerning that person which is not usually visible or audible to others. It may be established by way of inference from other facts in evidence. Where, as here, the state of mind to be established is an essential ingredient of the basis of criminal responsibility charged, the inference must be established beyond reasonable doubt. If there is any other inference reasonably open from the evidence which is consistent with the innocence of the accused, the required inference will not have been established to the necessary standard of proof. Any words of or conduct by the accused which point to or identify a particular state of mind on his part is relevant to the existence of that state of mind. It does not matter whether such words or conduct precede the time of the crime charged, or succeed it. Provided that such evidence has some probative value, the remoteness of those words or conduct to the time of the crime charged goes to the weight to be afforded to the evidence, not its admissibility. [...]

159. The Appeals Chamber considers that Šljivančanin misapprehends the mens rea standard applicable to aiding and abetting. The fact that an “omission must be directed to assist, encourage or lend moral support to the perpetration of a crime” forms part of the actus reus not the mens rea of aiding and abetting.[1] In addition, the Appeals Chamber has confirmed that “specific direction” is not an essential ingredient of the actus reus of aiding and abetting.[2] It reiterates its finding that the required mens rea for aiding and abetting by omission is that: (1) the aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator; and (2) he must be aware of the essential elements of the crime which was ultimately committed by the principal.[3] While it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed, if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter.[4] The Appeals Chamber further recalls that it has previously rejected an elevated mens rea requirement for aiding and abetting, namely, the proposition that the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.[5] Accordingly, Šljivančanin’s arguments are dismissed.  

277. The crime of destruction or wilful damage of cultural property under Article 3(d) of the Statute is lex specialis with respect to the offence of unlawful attacks on civilian objects.[1] The mens rea requirement of this crime is therefore also met if the acts of destruction or damage were wilfully (i.e. either deliberately or through recklessness) directed against such “cultural property”.[2]

141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.

142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians.

524. As recalled by the Appeals Chamber of ICTY in Jelisic, the Statute[1] defines the specific intent required for the crime of genocide as “the intent to accomplish certain specific types of destruction”[2] against a targeted group. Pursuant to the Statute, therefore, specific intent implies that the perpetrator seeks to destroy, in whole or in part, a national, ethnic, racial or religious group as such, by means of the acts enumerated under Article 2 of the said Statute.[3] In order to prove specific intent, it must be established that the enumerated acts were directed against a group referred to under Article 2 of the Statute and committed with the intent to destroy, in whole or in part, the said group as such.

525. The crime of genocide sometimes implies several offenders participating in the commission of the crime. The Appeals Chamber concurs with the Appellant that in order to find a person guilty of genocide, it must be established that such a person was personally possessed of the specific intent to commit the crime at the time he did so. Nonetheless, as stated by the Appeals Chamber in Kayishema/Ruzindana, “explicit manifestations of criminal intent are […] often rare in the context of criminal trials”.[4] In the absence of explicit, direct proof, the dolus specialis may therefore be inferred from relevant facts and circumstances.[5] Such an approach prevents perpetrators from escaping convictions simply because such manifestations are absent.[6] The validity of this interpretation was confirmed by the Appeals Chambers of both ad hoc Tribunals.[7] With respect to the facts and circumstances from which specific intent may be inferred, the ICTY Appeals Chamber in Jelisic stated that such facts are, inter alia:

[…] the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.[8] (Emphasis added)

The ICTY Appeals Chamber also indicated that the existence of a plan or policy is not “a legal ingredient” of the crime of genocide,[9] but that proving the existence of such a plan or policy may facilitate proof of the crime.[10] Moreover, the Kayishema/Ruzindana Appeal Judgement reveals that making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing dolus specialis.[11] The Appeals Chamber holds the view that establishing such a fact may, nonetheless, facilitate proof of specific intent.

528. […] The Appeals Chambers of the International Tribunal and the ICTY also confirmed that in the absence of explicit, direct evidence, specific intent may be inferred from other facts, such as the general context and the perpetration of other acts systematically directed against a given group. Such an approach does not imply that the guilt of an accused may be inferred only from his affiliation with “a guilty organisation.”

347. With respect to mens rea, the Appeals Chamber recalls that the indictment may either (i) plead the state of mind of the accused, in which case the facts by which that matter is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred.[1]

In paragraphs 281–305 the Appeals Chamber considered the submission of the Prosecution that the Trial Chamber erred in finding that all crimes against humanity enumerated under Article 5 require a discriminatory intent. It considered the text of Article 5 (paras. 282–286), relevant customary international law (paras. 287–292), the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)[1] (paras. 293–297) and statements made by France, the United States and the Russian Federation in the Security Council (paras. 298–304). It concluded as follows:

305. The Prosecution was correct in submitting that the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h), concerning various types of persecution.

45. […] The Appeals Chamber will use the term “specific intent” to describe the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[1]

47. As to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.

48. The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime.  However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases.  The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime.[2]

49. 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 Tadić appeal judgement the Appeals Chamber stressed the irrelevance and “inscrutability of motives in criminal law”.[3]

136. […] The Appeals Chamber recalls that, with respect to mens rea, an indictment may plead either (1) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (2) the evidentiary facts from which the state of mind is to be inferred.[1]

137. In the instant case, the Indictment pleaded that the Appellant had “the intent to destroy, in whole or in part, an ethnic or racial group as such”,[2] thus providing sufficient notice to the Appellant of the allegation that he possessed the specific intent to commit genocide. The Indictment therefore did not have to plead that the Appellant participated in recruiting young Hutu men for militia training as Impuzamugambi.

61. The Appeals Chamber recalls that the mens rea for instigating is established where the perpetrator acts with either direct intent to prompt another to commit a crime, or with awareness of the substantial likelihood that a crime will be committed in execution of that instigation.[1] Furthermore, where the crime alleged is genocide, it must also be proven that the perpetrator acted with the specific intent to destroy a protected group as such in whole or in part.[2]

43. The prosecution’s submission that wilful blindness as to the existence of the order is sufficient is based upon the common law’s acceptance of such a state of mind (also called deliberate ignorance) as being equally culpable as actual knowledge of the particular fact in question in certain areas of the criminal law. […] Proof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist).  In some cases, it has been suggested that such a state of mind is capable of giving rise to the inference of actual knowledge, but in most cases it is merely said to be sufficient to prove knowledge.

44. It is, of course, important to emphasise that common sense propositions of fact are not transformed into propositions of law. It can never be said that a requirement of actual knowledge may be established by anything less than actual knowledge.  But the acceptance in certain areas of the law of wilful blindness as establishing knowledge is of some assistance in determining whether, in any particular case, a “knowing” violation implies a requirement of actual knowledge of what has been violated. What must be identified in the present context is the type of conduct which can properly be described as “knowing and wilful”, which interferes with the Tribunal’s administration of justice and which is appropriately dealt with as contempt, with its liability for imprisonment or a substantial fine.

45. Mere negligence in failing to ascertain whether an order had been made granting protective measures to a particular witness could never amount to such conduct.  It is unnecessary in this appeal to determine whether any greater degree of negligence could constitute contempt. Negligent conduct could be dealt with sufficiently, and more appropriately, by way of disciplinary action, but it could never justify imprisonment or a substantial fine even though the unintended consequence of such negligence was an interference with the Tribunal’s administration of justice.  At the other end of the spectrum, wilful blindness to the existence of the order in the sense defined is, in the opinion of the Appeals Chamber, sufficiently culpable conduct to be more appropriately dealt with as contempt. Whether other states of mind, such as reckless indifference to the existence of the order, constitute contempt by a knowing violation of the order can be left to the cases in which they arise for determination.

54. In most cases where it has been established that the alleged contemnor had knowledge of the existence of the order (either actual knowledge or a wilful blindness of its existence), a finding that he intended to violate it would almost necessarily follow.  There may, however, be cases where such an alleged contemnor acted with reckless indifference as to whether his act was in violation of the order.[1]  In the opinion of the Appeals Chamber, such conduct is sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order.  The Appeals Chamber agrees with the prosecution that it is sufficient to establish that the act which constituted the violation was deliberate and not accidental. […]

270.   The Appeals Chamber recalls that the Kunarac et al. Appeal Judgement endorsed the holding of the trial chamber in that case that the accused must have known of the attack against the civilian population and that his acts comprised part of the attack, or at least must have taken the risk that his acts were part thereof.[1] Subsequently, in Blaškić the Appeals Chamber held that what is required is “knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof”.[2]

271.   The dispute between the parties in the present case revolves around the question of whether the Blaškić Appeal Judgement rescinded the ruling in Kunarac et al. with regard to the mens rea chapeau requirement of Article 5 of the Statute. When analysed in the context of the other relevant considerations in the Blaškić Appeal Judgement, it becomes evident that the Appeals Chamber did not intend to depart from its previous holding in Kunarac et al. This is illustrated by the fact that in defining the mens rea of crimes against humanity, the Blaškić Appeal Judgement explicitly referred to paragraph 102 of the Kunarac et al. Appeal Judgement, which in turn cites with approval the mens rea standard adopted by the trial chamber in that case.[3] Such interpretation is further supported by the Appeals Chamber’s subsequent jurisprudence adhering to the “taking the risk” standard endorsed in the Kunarac et al. Appeal Judgement.[4] […]

262. The Appeals Chamber notes that motive, as opposed to mens rea, is not an element of any crime.[1] The question whether Kanyarukiga lacked a motive to participate in the crimes for which he was convicted thus does not have the potential to invalidate the verdict and the Appeals Chamber declines to consider it.[2]

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]

261. The Appeals Chamber first observes that the Trial Chamber correctly stated that the prominence of the targeted portion of the protected group is a relevant factor in determining whether the perpetrator intended to destroy at least a substantial part of the protected group.[1] Indeed, as the Trial Chamber held, “genocidal intent may […] consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”.[2] This holding is consistent with other trial judgements of the Tribunal,[3] as well as the Appeals Chamber’s own jurisprudence. The Appeals Chamber recalls, in this respect, that “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4” of the Statute.[4]

262. The Commission of Experts Report, on which the Trial Chamber relied as support for its legal analysis vis-à-vis the killings of the three Žepa leaders,[5] states, in relevant part:

[i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose.[6]

263. The Appeals Chamber finds no legal error in the Trial Chamber’s statement that the selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent.[7] The Appeals Chamber is not persuaded that the commission of genocide through the targeted killings of only the leaders of a group suggests that the leaders of the group are subject to special, stronger protection than the other members of the group, as Tolimir suggests. Recognising that genocide may be committed through the killings of only certain prominent members of the group “selected for the impact that their disappearance would have on the survival of the group as such”[8] aims at ensuring that the protective scope of the crime of genocide encompasses the entire group, not just its leaders. […]

264. […] For a finding of genocide it suffices that the leaders were “selected for the impact that their disappearance would have on the survival of the group as such”.[9] Genocide may be committed even if not all leaders of a group are killed – even though targeting “the totality [of the leadership] per se may be a strong indication of genocide regardless of the actual numbers killed”.[10]

265. […] The Appeals Chamber recalls that according to the Commission of Experts Report and as the Trial Chamber itself recognised, “[t]he character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group […] at the same time or in the wake of that” attack.[11] As the Trial Chamber found, the selective targeting of a protected group’s leadership may amount to genocide only if the leaders are selected because of “the impact that their disappearance would have on the survival of the group as such”.[12] The impact of the leaders’ disappearance may of course be assessed only after the leaders are attacked. Only by considering what happened to the rest of the protected group at the same time or in the wake of the attack on its leadership could “the impact that [the leaders’] disappearance would have on the survival of the group as such” be assessed.[13]

[…]

267. The Appeals Chamber has already established that the Trial Chamber did not err in finding that the only reasonable inference from the evidence was that the three Žepa leaders suffered a violent death at the hands of their Bosnian Serb captors.[14] However, the Trial Chamber failed to explain how their detention and killings – committed weeks after the entire Žepa population had been forcibly transferred from the enclave – had any impact “on the survival of the group as such”.[15] The Trial Chamber accepted in its conclusion that there was such an impact, but it did not consider or analyse whether or how the killings of the three Žepa leaders after the Bosnian Muslim civilian population of Žepa had been transferred to safe areas of BiH specifically affected the ability of those removed civilians to survive and reconstitute themselves as a group.[16] A finding that Žepa’s Bosnian Muslims lost three of their leaders[17] does not suffice to infer that those civilians were affected by the loss of their leaders in a way that would threaten or tend to contribute to their physical destruction as a group.

[…]

269. In this context, particularly in light of the fact that the forcible transfer operation of Žepa’s Bosnian Muslims had been completed before the three Žepa leaders were detained and killed and in the absence of any findings as to whether or how the loss of these three prominent figures affected the ability of the Bosnian Muslims from Žepa to survive in the post-transfer period, the inference of genocidal intent was not the only reasonable inference that could be drawn from the record. In the view of the Appeals Chamber, the evidence does not allow for the conclusion that the murders of the three Žepa leaders had a significant impact on the physical survival of the group as such so as to amount to genocide. There is, in sum, no sufficient evidentiary support for the finding that Hajrić, Palić, and Imamović were killed “with the specific genocidal intent of destroying part of the Bosnian Muslim population as such”.[18] […]

222. The Appeals Chamber recalls that the mens rea for aiding and abetting is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal perpetrator.[1] Specific intent crimes such as genocide do not require that the aider and abettor share the mens rea of the principal perpetrator; it suffices to prove that he knew of the principal perpetrator’s specific intent.[2]

[…]

227. In these circumstances, the Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo knew that, by instructing the refugees to move to Kabuye hill and subsequently bringing soldiers there, he was assisting the assailants in killing the refugees, and that he knew of their genocidal intent. Ntawukulilyayo correctly points out that the Trial Chamber found that he had good character and provided assistance to Tutsis before, during, and after the genocide.[3] Such evidence was indeed relevant to the assessment of Ntawukulilyayo’s mens rea and it might have been opportune for the Trial Chamber to have discussed such evidence in the relevant section of its legal findings. Nevertheless, the Appeals Chamber considers that, based on the totality of the evidence in this case, such evidence of Ntawukulilyayo’s good character and assistance to other Tutsis did not preclude a reasonable trier of fact from concluding that the only reasonable inference was that Ntawukulilyayo knew that the Tutsi refugees would not in fact be protected at Kabuye hill, but rather killed.[4]

53. With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [...]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[1] Specific intent crimes such as genocide also require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[2]

92. […] It further recalls that aiding and abetting as a form of responsibility pursuant to Article 6(1) of the Statute does not require that the accused be in a position of authority.[3] […]

32. […] The issue which the Appeals Chamber will address is whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, and if so, how it should be defined.

41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chamber’s above articulations of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chamber’s standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.

42. The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[1]

See also para. 345 et seq.

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.

127. […] The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.[1] In cases of specific intent crimes such as persecutions or genocide, the aider and abettor must know of the principal perpetrator’s specific intent.[2]

221.  In describing the applicable law for aiding and abetting, the Trial Chamber restated the formulation of the mens rea for aiding and abetting found in the Vasiljević Appeal Judgement:

[I]t is not required that the aider and abettor shared the mens rea required for the crime; it is sufficient that the aider and abettor had knowledge that his or her own acts assisted in the commission of the specific crime by the principal offender. The aider and abettor must also be aware of the “essential elements” of the crime committed by the principal offender, including the state of mind of the principal offender.[3]

The Appeals Chamber has applied this formulation consistently in its judgements.[4] Consequently, the Appeals Chamber finds no legal error on the part of the Trial Chamber in this regard.

111. […] The Appeals Chamber holds that the mens rea for persecutions “is the specific intent to cause injury to a human being because he belongs to a particular community or group.” The Appeals Chamber stresses that there is no requirement in law that the actor possess a “persecutory intent” over and above a discriminatory intent.[1]

112. In addition, the Appeals Chamber considers that a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions.[2]

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]

102. […] [T]he accused must have had the intent to commit the underlying offence or offences with which he is charged, and that he must have known “that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.”[1] This requirement […] does not entail knowledge of the details of the attack.[2]

103. For criminal liability pursuant to Article 5 of the Statute, “the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.”[3] Furthermore, the accused need not share the purpose or goal behind the attack.[4] It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim.  It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.

109. The Appeals Chamber notes that motive is generally not an element of criminal liability. The Appeals Chamber has repeatedly confirmed the “‘inscrutability of motives in criminal law’ insofar as liability is concerned, where an intent […] is clear”.[1] […]

428. It is well established that the mens rea of aiding and abetting requires that an aider and abettor know that his acts would assist in the commission of the crime by the principal perpetrator and must be aware of the “essential elements” of the crime.[1] It does not require that he shares the intention of the principal perpetrator of such crime, as Sredoje Lukić submits. […]

440. The Appeals Chamber further recalls that an aider and abettor must know that his acts would assist the commission of the crime by the principal perpetrators and must be aware of the “essential elements” of the crime committed by the principal perpetrator.[2] […]

458. The Trial Chamber’s statement of the law with regard to the mens rea of aiding and abetting is correct.[3] The special intent crime of persecutions requires in addition that:

[the aider and abettor] be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration.[4]

8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. […]

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide.  These Chambers arrived at the same conclusion.  In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”  This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.

[…]

12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.  The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations.  The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry.  The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.  In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration.  If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.

13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered.  Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale.  Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.  The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him.  While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.

14. These considerations, of course, are neither exhaustive nor dispositive.  They are only useful guidelines.  The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.

See also para. 8 (part) and paras. 9–11.

32. In determining that genocide occurred at Srebrenica, the cardinal question is whether the intent to commit genocide existed.  While this intent must be supported by the factual matrix, the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part.  Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent.  The international attention focused on Srebrenica, combined with the presence of the UN troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way.  Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.

33. The Trial Chamber - as the best assessor of the evidence presented at trial - was entitled to conclude that the evidence of the transfer [of women, children, and elderly within the Sebrenica enclave to other areas of Muslim-controlled Bosnia] supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica.  The fact that the forcible transfer does not constitute in and of itself a genocidal act[6] does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff.  The genocidal intent may be inferred, among other facts, from evidence of “other culpable acts systematically directed against the same group.”

Inferring intent from the factual circumstances of the crime:

[…]

34. The Defence also argues that the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.[8]  The absence of such statements is not determinative.  Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.[9]  The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified.  If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.

35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent.  As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.  The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS.[10]  The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here.  This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.

161.    […] The Appeals Chamber notes that criminal intent (mens rea) must not be confused with motive and that, in respect of genocide, personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed “with intent to destroy, in whole or in part a national, ethnical, racial or religious group”.[1]

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

[…]

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

[…]

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

See also para. 564.

917. Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts to find that he possessed the requisite intent pursuant to the first category of joint criminal enterprise is based on a misunderstanding of the applicable law. The Trial Chamber was not required to establish that Župljanin intended the specific coercive acts by which the JCE I Crimes were to be achieved. The Appeals Chamber recalls that the Trial Chamber was required to find that Župljanin shared with the other members of the JCE the intent to commit the JCE I Crimes and the intent to participate in a common plan aimed at their commission.[1] Therefore, it was necessary for the Trial Chamber to find that Župljanin shared the intent for the JCE I Crimes, and especially that he intended to forcibly displace, permanently or otherwise, the victims across the relevant de facto or de jure border to another country (as in deportation) or within a relevant border (as in forcible transfer).[2] In the view of the Appeals Chamber, it is not required that members of the JCE agreed upon a particular form through which the forcible displacement of non‑Serbs was to be effectuated or that Župljanin intended specific acts of coercion causing the displacement of individuals, so long as it is established that Župljanin intended to forcibly displace the victims.

2135.            Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (h) Persecutions on political, racial and religious grounds[.]

2136.            The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds.[1] While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that “it [was] open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law.”[2] Whether or not the Security Council may have defined the crime of persecution as a crime against humanity more narrowly than necessary under customary international law, the Tribunal’s jurisdiction is limited to persecution on political, racial, and religious grounds.[3]

2137.            As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the “racial” ground. The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”,[4] it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.[5] In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes “ethnicity” from “race” in the listed discriminatory grounds for the attack against a civilian population.[6] The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that “ethnicity” cannot be encapsulated in “race”. Indeed, interpreting the discriminatory ground of “race” in Article 3(h) of the Statute as including “ethnicity” would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous.[7] According to a textual and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that “ethnicity” cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[8] Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber’s holding, did not extend it to include “ethnicity” as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape”, the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.[9] However, the Appeals Chamber observes that the Trial Chamber’s reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is misplaced.[10] Contrary to the Trial Chamber’s finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus – and not the mens rea – of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact.[11]

2139.            Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape.”[12] […]

243. […] Of even greater significance, there is no legal requirement that a trial chamber’s analysis as to an accused’s mens rea and actus reus be done separately […]. To the contrary, trial chambers are free to organize their judgements as they see fit so long as they fulfil their obligation to provide a reasoned opinion.[1]

[…] 

247. […] The Appeals Chamber observes that the Trial Chamber used this practice of cross-referencing throughout the Trial Judgement instead of re‑summarizing its findings of fact or summaries of evidence.[2] The Appeals Chamber recalls that trial chambers need not unnecessarily repeat considerations reflected elsewhere in the trial judgement.[3] Furthermore, nothing prevents a trial chamber from relying on the same evidence when making findings as to an accused’s actus reus and mens rea. Accordingly, the Appeals Chamber finds that Mladić does not demonstrate that the Trial Chamber used its finding of mens rea to substantiate its finding of his significant contribution or committed any error in this respect. […] 

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.

84. The Appeals Chamber recalls that the mens rea for a violation under Rule 90(A)(ii) of the Rules is the knowledge that the disclosure in question is in violation of an order of a Chamber or a Single Judge.[1] No demonstration of a “specific intent to interfere with the administration of justice” is required in this respect.[2] The ICTY Appeals Chamber in the Hartmann case accepted the Trial Chamber’s interpretation that:

[I]t is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[3]