259. The Appeals Chamber notes that it has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.[1] Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment. […]

30. The Appeals Chamber recalls that the practice of both the Tribunal and the ICTY requires the Prosecution to plead the specific forms of individual criminal responsibility for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein, because of the ambiguity that this causes.[2]

At para. 122, the Appeals Chamber recalled its previous finding that, even when the Prosecution quotes in full the provisions of Article 6(1) of the Statute in the Indictment, the Indictment can be sufficiently pleaded in other paragraphs of the indictment.[1]

The Appeals Chamber considered “the reference to aiding and abetting in the preamble to Count 4 [by repeating the language of Article 6(1)], taken in combination with the allegations of material facts sufficient to support a conviction under that mode of liability, was sufficient to put the Appellant on notice that he was charged with aiding and abetting”.[2]

185.    Article 6(1) of the Statute provides that a person who “planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.” This provision reflects the criminal law principle that criminal liability is not incurred solely by individuals who physically commit a crime, but may also extend to those who participate in and contribute to a crime in various ways, when such participation is sufficiently connected to the crime, following principles of accomplice liability. Article 6 (1) may thus be regarded as intending to ensure that all those who either engage directly in the perpetration of a crime under the Statute, or otherwise contribute to its perpetration, are held accountable.[1]

186.    The Appeals Chamber notes that the Trial Chamber did, earlier in the Judgement, discuss the general principles relating to criminal responsibility under Article 6 (1) of the Statute. The relevant paragraph of the Trial Judgement reads:

The Trial Chamber is of the opinion that, as was submitted by the Prosecution, there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6 (1). This test required the demonstration of (i) participation, that is that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime.[2]

          The Appeals Chamber finds that this statement corresponds to the elements of individual criminal responsibility as set out, as follows, by the jurisprudence[3] of this Tribunal and that of ICTY:

1. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have a direct and substantial effect on the commission of the illegal act; and
2. The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.

[…]

[…]

189.    […] individual responsibility under Article 6 (1) of the Statute attaches not only to direct physical participation by the accused in the commission of the crime, but also to acts of participation which in fact contribute to, or have an effect on, the commission of the crime. […]

139.    In relation to Stanišić’s submission that the Trial Chamber failed to provide a reasoned opinion as to whether and how his acts and conduct furthered the JCE, and whether his alleged contribution to the JCE was significant, the Appeals Chamber notes that the Trial Chamber indeed did not enter express findings in this regard. The Appeals Chamber recalls that these are legal requirements in order for joint criminal enterprise liability to be incurred[1] and that not every type of conduct will amount to a significant enough contribution to the crime to give rise to criminal liability.[2] A trial chamber’s determination of whether and to what extent an accused’s acts and conduct furthered the joint criminal enterprise, and whether the requisite threshold of significance is met, are therefore relevant legal findings essential to the determination of an accused’s guilt, and must be set out in a clear and articulate manner.[3] The lack of explicit findings in this regard falls short of what is required under Article 23(2) of the Statute and Rule 98ter(C) of the Rules.[4] Neither Stanišić nor the Appeals Chamber should be expected to engage in a speculative exercise to discern the Trial Chamber’s findings in this regard.[5]

140.    In this context, the Appeals Chamber further considers that the absence of these essential legal findings and the accompanying reasoning have necessarily hindered Stanišić’s ability to appeal his conviction, as he would have been unable to identify exactly which underlying factual findings the Trial Chamber relied upon in its ultimate conclusion that he contributed significantly to the furtherance of the JCE. The Appeals Chamber therefore finds that the Trial Chamber’s failure to enter express findings as to whether and how Stanišić’s acts and conduct furthered the JCE, and whether his contribution was significant constitutes a failure to provide a reasoned opinion.

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]