90. The Appeals Chamber notes that, […] it is well established that “planning” is not an element of a JCE.[1]The material element of a JCE is the “common purpose”, and it is on this basis that the Trial Chamber convicted the Appellant for his participation in a JCE. […]

76. The Trial Chamber referred to the conversation when assessing Kanyarukiga’s actus reus of planning.[1] Moreover, the Trial Chamber concluded in this context that it was “satisfied beyond reasonable doubt that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others planned the destruction of the Nyange [c]hurch on 15 and 16 April 1994 and that the church was destroyed on the afternoon of 16 April 1994, killing those inside.”[2] Accordingly, in the Trial Chamber’s view, Kanyarukiga planned the destruction of the church on both days, his criminal conduct on 15 April 1994 consisting of his conversation with Kayishema.[3] This conversation thus amounted to a material fact that, along with others, underpinned Kanyarukiga’s conviction for planning. Recalling that when the accused is charged with planning, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charge in question,[4] the Appeals Chamber finds that the conversation should have been pleaded in the Amended Indictment. In this respect, the Amended Indictment was defective.

77. However, as will be discussed below, Kanyarukiga was also held responsible for participating in a meeting at the Nyange parish on the morning of 16 April 1994 where the demolition of the Nyange church was discussed and agreed to as well as for making a remark after the meeting about the need to destroy the church. This conduct was adequately pleaded in the Amended Indictment and is a sufficient basis for Kanyarukiga’s convictions. Therefore, by partly relying on Kanyarukiga’s conversation on 15 April 1994, the Trial Chamber did not commit an error which would invalidate the verdict. The Appeals Chamber therefore declines to consider the issue further[5] and will instead simply disregard the conversation as a basis for Kanyarukiga’s liability.

75. The Appeals Chamber notes that the Trial Chamber was unable to identify the direct perpetrators of the alleged murders or other crimes by name, but with respect to the crimes for which Tarčulovski was convicted the Trial Chamber did find that the direct perpetrators were members of the police who entered Ljuboten on the morning of 12 August 2001[1] and that Tarčulovski directed the actions of the police in the village that day.[2] These findings were sufficiently specific to identify the direct perpetrators as persons being directed by Tarčulovski for the purposes of establishing his criminal liability.[3] Tarčulovski’s arguments in this respect are rejected.

See also para. 89.

66. The Appeals Chamber recalls its holding that:

The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.[1]

It is well-established in the Tribunal’s jurisprudence that the elements of a Common Article 3 crime encompass the requirement that the victim did not take an active part in the hostilities at the time when the crime was committed.[2] Therefore, the Appeals Chamber is satisfied that the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.[3]

67. In the present case, the Trial Chamber did not make explicit findings on the mens rea of the direct perpetrators in relation to the status of the victims of the Common Article 3 crimes of murder and cruel treatment.[4] However, when read as a whole,[5] the Trial Judgement shows that the Trial Chamber examined whether the direct perpetrators knew or should have been aware of the status of the victims in relation to each crime, as demonstrated by its findings on the factual circumstances in which the crimes were committed.[6] […]

67. […] In these circumstances, where the direct perpetrators’ knowledge of the status of the victims was part of the Trial Chamber’s factual findings, the Appeals Chamber need not consider whether such findings are necessary for a conviction for planning, instigating and ordering. Tarčulovski’s argument in this regard is dismissed. Under the third and fourth grounds of appeal, the Appeals Chamber will consider further whether the totality of the Trial Chamber’s factual findings in relation to the status of the victims are reasonable.[1]

68. With respect to Tarčulovski’s mens rea, the Appeals Chamber recalls that he was convicted of planning, instigating and ordering crimes including those under Common Article 3. Hence, Tarčulovski was required to have the direct intent or the awareness of the substantial likelihood that the crimes would be committed in the execution of his plan, instigation and order.[2] Indeed the Trial Chamber found that Tarčulovski was responsible for planning, instigating and ordering the “deliberate but indiscriminate attack against the residents of Ljuboten of Albanian ethnicity”.[3] Given the indiscriminate nature of the attack, the Appeals Chamber is satisfied that the Trial Chamber reasonably concluded that Tarčulovski possessed the requisite mens rea for these modes of liability.[4] His argument in this regard is dismissed.

268. […] [T]he Appeals Chamber recalls that the actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[1] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.[2] The mens rea for this mode of responsibility entails the intent to plan the commission of a crime or, at a minimum, the awareness of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.[3]

274. […] [T]he Appeals Chamber notes that the Trial Chamber’s conclusions that Milošević planned the shelling incidents are based on essentially the same set of facts. In the circumstances of this case, the Appeals Chamber proprio motu finds that Milošević’s responsibility for ordering fully encompasses his criminal conduct and thus does not warrant a conviction for planning the same crimes.[4]

265. The Trial Chamber has adopted a very general approach in that it did not analyse whether Milošević ordered every sniping or shelling incident, but rather concluded that those incidents could only take place if ordered by him in the framework of the campaign directed against the civilian population of Sarajevo. In principle, this approach is not erroneous as such, given that both the actus reus and the mens rea of ordering can be established through inferences from circumstantial evidence, provided that those inferences are the only reasonable ones. The Appeals Chamber underlines, however, that when applying such an approach to the facts of the case, great caution is required.

266. First, the Appeals Chamber emphasizes that, as the Trial Chamber correctly held in its discussion of the widespread or systematic attack, “[a] campaign is a military strategy; it is not an ingredient of any of the charges in the Indictment, be that terror, murder or inhumane acts”.[1] The Appeals Chamber notes, however, that in other parts of the Trial Judgement, the Trial Chamber appears to hold Milošević responsible for planning and ordering a campaign of crimes.[2] The Appeals Chamber understands these references as illustrating that the crimes at stake formed a pattern comprised by the SRK military campaign in Sarajevo. Therefore, the “campaign” in the present Appeal Judgement shall be understood as a descriptive term illustrating that the attacks against the civilian population in Sarajevo, in the form of sniping and shelling, were carried out as a pattern forming part of the military strategy in place.

Having clarified that Milošević could not be held criminally responsible for planning or ordering a military campaign (but rather for the crimes resulting therefrom), the Appeals Chamber further concluded that there was no evidence of him planning or ordering the campaign as such. Therefore, there was no basis for a conclusion that he planned and ordered the crimes on the ground that they resulted from a military campaign. Consequently, the Appeals Chamber proceeded to analyse whether there was evidence supporting the Trial Chamber’s conclusions that Milošević planned and ordered the crimes resulting from the specific shelling and sniping incidents. The Appeals Chamber further underlined:

271. The Appeals Chamber emphasizes that its findings above pertain strictly to Milošević’s individual criminal responsibility for ordering and planning the campaign of shelling and sniping of civilians in Sarajevo as such, given that not all the legal requirements necessary for these modes of liability have been established at trial. These findings do not affect the conclusions of the Trial Chamber or those of the Galić Trial and Appeal Chambers that such a campaign took place in Sarajevo during the relevant period.