Responsibility for crimes committed by non-members of the JCE
| Notion(s) | Filing | Case |
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| Appeal Judgement - 08.10.2008 |
MARTIĆ Milan (IT-95-11-A) |
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The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan. The Appeals Chamber considered the link between Martić and the principal perpetrators of crimes who were not proven to be members of the JCE. 168. In Brđanin, the Appeals Chamber held that the decisive issue under the basic form of JCE was not whether a given crime had been committed by a member of the JCE, but whether this crime fell within the common criminal purpose of the JCE.[1] For the extended form of JCE, the accused may be found responsible provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk.[2] The Appeals Chamber thus held that members of a JCE could be held liable for crimes committed by principal perpetrators who were not members of the JCE provided that it had been shown that the crimes could be imputed to at least one member of the JCE and that this member, when using a principal perpetrator, acted in accordance with the common plan.[3] 171. In order to convict a member of a JCE for crimes committed by non-members of the JCE, a Trial Chamber must be satisfied beyond a reasonable doubt that the commission of the crimes by non-members of the JCE formed part of a common criminal purpose (first category of JCE), or of an organised criminal system (second category of JCE), or were a natural and foreseeable consequence of a common criminal purpose (third category of JCE).[4] The application of the law is clear from the distinction between events in Cerovljani and Lipovača. The appeal was upheld in relation to events in Cerovljani: 191. The Trial Chamber also found that on 13, 21 and 24 September 1991, armed Serbs from Živaja led by Nikola Begović burnt ten houses and damaged the Catholic church in the village of Cerovljani. The Trial Chamber […] convicted Martić on the basis that the commission of the [corresponding] crimes was a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[5] 192. The Appeals Chamber finds that a reasonable trier of fact could not have reached the conclusion that Martić was responsible for the acts of destruction perpetrated by armed Serbs from Živaja led by Nikola Begović. Having due regard to the Trial Chamber’s findings and the evidence on which they relied,[6] the Appeals Chamber concludes that the Trial Chamber erred in establishing a link between Martić and these perpetrators. In particular, Exhibit 273, a witness statement of Antun Blažević, on which much of these findings depend, only suggests that the armed men under Begović had received weapons from the JNA, without any evidence of additional control or influence by Martić or other members of the JCE.[7] Without any further elaboration on the link between these forces and the JNA, no reasonable trier of fact could have held that the only reasonable conclusion in the circumstances was that these crimes could be imputed to a member of the JCE. The link between the principal perpetrators of these crimes and members of the JCE is therefore too tenuous to support Martić’s conviction. However, the Appeal was dismissed in relation to events in Lipovača: 194. The Trial Chamber found that Serb paramilitary forces intentionally killed seven civilians in Lipovača towards the end of October 1991. The Trial Chamber […] convicted Martić on the basis that [the corresponding] crimes were a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[8] 195. The Appeals Chamber finds that a reasonable trier of fact could have reached the conclusion that Martić was responsible for the killings perpetrated in Lipovača by Serb paramilitary forces. The Appeals Chamber notes that, in its findings on the killings in Lipovača, the Trial Chamber referred to evidence establishing that the JNA had warned the villagers to beware of Serb paramilitary units that would arrive after the JNA left, that the Serb paramilitary units arrived after the JNA as warned and that these paramilitary units were called “reserve forces, Martić’s troops or Martić’s army” and wore uniforms like those of the army.[9] The Appeals Chamber is therefore satisfied that a reasonable trier of fact could have been satisfied beyond a reasonable doubt that the Serb paramilitary forces in question were in fact JNA or TO soldiers or were at least acting in concert with the JNA. Taking into account the warning provided by the JNA, the denomination of these troops and their uniforms, as well as the general pattern of take-over and criminal conduct in the area, it was reasonable for the Trial Chamber to conclude that these crimes were committed by a member of a paramilitary group with a link to a member of the JCE, and, therefore, that they were imputable to Martić as a participant in that JCE. [1] Brđanin Appeal Judgement, paras 410, 418 and 431. [2] Brđanin Appeal Judgement, para. 411. [3] Brđanin Appeal Judgement, para. 413. See also Brđanin Appeal Judgement, para. 430. [4] Brđanin Appeal Judgement, paras 410, 411 and 418. [5] Trial Judgement, paras 454-455. [6] Trial Judgement, paras 186-188, 360-361 and 363. [7] See Trial Judgement, paras 186-188. [8] Trial Judgement, paras 454-455. [9] Trial Judgement, paras 202-203. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 23.01.2014 |
ŠAINOVIĆ et al. (IT-05-87-A) |
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1256. The Appeals Chamber recalls that the essential requirement for holding a JCE member responsible for a crime under the first category of JCE is that the crime formed part of the common purpose of the JCE. In this respect, the Appeals Chamber recalls that JCE members may be held responsible for crimes carried out by principal perpetrators who were non-JCE members, provided that it has been shown that the crimes can be imputed to at least one JCE member and that the latter – when using the principal perpetrators – acted in accordance with the common objective.[2] The existence of this link between the crimes in question and a JCE member is to be assessed on a case-by-case basis.[3] 1257. Pavković’s argument that the Trial Chamber failed to examine whether he closely cooperated with the principal perpetrators for each crime charged is without merit. Close cooperation between a principal perpetrator and a JCE member, including the accused, is but one of various factors from which a chamber may infer that a crime formed part of the common purpose and is thus imputable to JCE members. It is not a prerequisite for imputing the crime to JCE members. Pavković’s argument in this regard is based on a misunderstanding of the law and is therefore dismissed. 1258. […] The Trial Chamber only imputed crimes to the JCE members at various sites, once it was satisfied that there was sufficient evidence to identify principal perpetrators as members of the VJ and/or the MUP.[6] Given the prominent positions of JCE members such as Milošević, Šainović, Pavković, and Lukić and their significant power over the VJ and/or the MUP in Kosovo,[7] the Trial Chamber’s findings regarding the principal perpetrators at each crime site was sufficiently specific to identify them as persons used by one of the JCE members.[8] […] 1259. The Appeals Chamber is not persuaded by Pavković’s assertions that in order to incur liability for using a principal perpetrator as a tool, a JCE member must have ordered or instructed the principal perpetrator to commit the crime and that there was no evidence of any such orders.[9] A JCE member’s order or instruction to non-JCE members to commit a crime is not a sine qua non prerequisite but one of several factors which may be taken into account by a chamber when determining whether to impute the crime to that JCE member.[10] 1260. There is no merit in Pavković’s arguments that it was inappropriate to charge him with “committing” crimes as those who carried out the actus reus of the crimes were not members of the JCE[11] and that, if it were proven that he or other JCE members ordered non-JCE members to commit crimes, “ordering” would have been the appropriate mode of liability.[12] The Appeals Chamber recalls that it has “consistently held that participation in a JCE is a form of ‘commission’ under Article 7(1) of the Statute.” […] [1] Martić Appeal Judgement, para. 168; Brđanin Appeal Judgement, paras 410, 418. [2] Krajišnik Appeal Judgement, para. 225; Martić Appeal Judgement, para. 168; Brđanin Appeal Judgement, para. 413. [3] Krajišnik Appeal Judgement, para. 226; Martić Appeal Judgement, para. 169; Brđanin Appeal Judgement, para. 413. See also Brđanin Appeal Judgement, para. 410; Krajišnik Appeal Judgement, paras 226, 237-282; Martić Appeal Judgement, paras 174-181, 187-189, 205-206, regarding factors indicative of such a link. [4] Pavković’s Appeal Brief [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, General Pavković’s Amended Appeal Brief, 30 September 2009, annexed to General Pavković’s Submission of his Amended Appeal Brief, 30 September 2009], paras 20, 23. [5] Brđanin Appeal Judgement, para. 410. [6] Trial Judgement, vol. 3, paras 468, 475, 783, 788, 1132, 1138. When the evidence was insufficient for such identification of principal perpetrators, the Trial Chamber found that their identity was not established and did not link their crimes with any JCE member for the purpose of determining the criminal responsibility of Sainović, Pavković, and Lukić (see e.g., Trial Judgement, vol. 2, paras 121-122, 144, 161, 164, 396, 440-460, 667-668, 692, 710, 730, 798, 943, 945, 1077, 1110-1111, 1117, 1129, 1137, 1140, 1143, 1149 (compare with ibid., vol. 3, paras 475, 788, 1138)). [7] See Trial Judgement, vol. 3, paras 468, 783, 1132. [8] See Martić Appeal Judgement, paras 188, 192, 195, 198, 200, 205; Krajišnik Appeal Judgement, paras 239-247, 250-282. [9] Pavković’s Appeal Brief, paras 37-38, 40. [10] See Krajišnik Appeal Judgement, para. 226, holding that factors indicative of a link between crimes committed by non-JCE members and members of the JCE include “evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime.” [11] Pavković’s Appeal Brief, paras 30-31, 34. [12] Pavković’s Appeal Brief, paras 37-38. [13] Krajišnik Appeal Judgement, para. 662; Kvočka et al. Appeal Judgement, paras 79-80; Tadić Appeal Judgement, paras 188, 190-191, 226-228. Cf. Brđanin Appeal Judgement, fn. 891; Krajišnik Appeal Judgement, para. 664. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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The Trial Chamber had held that a conviction for a crime under the JCE doctrine requires that the person actually committing the actus reus of the crime (“principal perpetrator”) is a member of the same criminal enterprise. The Appeals Chamber reversed this finding and found: 410. […] that what matters in a first category JCE is not whether the person who carried out the actus reus of a particular crime is a member of the JCE, but whether the crime in question forms part of the common purpose.[1] […] 411. When the accused, or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise. […] 413. […] [T]he Appeals Chamber finds that, to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2] [1] See infra, paras 418-419. [2] The jurisprudence of the Tribunal traditionally equates a conviction for JCE with the mode of liability of “committing” under Article 7(1). The Appeals Chamber declines at this time to address whether this equating is still appropriate where the accused is convicted via JCE for crimes committed by a principal perpetrator who was not part of the JCE, but was used by a member of the JCE. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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The Appeals Chamber considered the link between Krajišnik and other JCE members and the principal perpetrators of crimes who were not proven to be members of the JCE. 225. In the Brđanin Appeal Judgement, the Appeals Chamber held that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member – when using the principal perpetrators – acted in accordance with the common objective.[1] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[2] 226. The establishment of a link between the crime in question and a member of the JCE is a matter to be assessed on a case-by-case basis.[3] Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime. However, it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew of the existence of the JCE; what matters in JCE Category 1 is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose.[4] 235. The Appeals Chamber recalls its finding in Brđanin that all JCE members are responsible for a crime committed by a non-JCE member if it is shown that the crime can be imputed to at least one JCE member, and that this JCE member – when using the non-JCE member – acted in accordance with the common objective.[5] 236. At paragraphs 883(ii), 1082 and 1086 of the Trial Judgement, the Trial Chamber held that a JCE member could incur liability for crimes committed by other JCE members or by principal perpetrators “procured” by a JCE member to commit crimes which further the common objective. The Appeals Chamber is satisfied that this standard corresponds in substance to the standard outlined in the Brđanin Appeal Judgement which was rendered after the Trial Judgement in the present case.[6] Amicus Curiae therefore fails to show an error by the Trial Chamber in this respect. The Appeals Chamber held, however, that the Trial Chamber, in relation to the majority of crimes, erroneously failed to make findings on the link between the principal perpetrators and the members of the JCE: 237. The Appeals Chamber will now analyse whether the Trial Chamber made the necessary factual findings establishing links between the principal perpetrators of the crimes and the JCE members identified above;[7] in other words, whether the JCE members used the principal perpetrators to commit crimes in furtherance of the common purpose in the sense that the crimes can be imputed to the JCE members.[8] At the outset, the Appeals Chamber observes that the Trial Chamber did not explicitly state that JCE members procured or used principal perpetrators to commit specific crimes in furtherance of the common purpose. The Appeals Chamber finds that, while the Trial Chamber should have made such a finding, this omission, in the circumstances of this case, does not as such invalidate the Trial Judgement,[9] because the Trial Chamber otherwise established a link between JCE members and principal perpetrators of crimes forming part of the common objective. However, in relation to a large number of principal perpetrators, the Trial Chamber did not reach any definite finding on their link with one of the JCE members. The Appeals Chamber will take this into account when reviewing the Trial Chamber’s findings. This analysis must be conducted on the basis of the Trial Judgement as a whole. […] See also, paras 598 and 714. [1] Brđanin Appeal Judgement, paras 413, 430. See also Martić Appeal Judgement, para. 168. [2] Brđanin Appeal Judgement, para. 413. See also Limaj et al. Appeal Judgement, para. 120. [3] Brđanin Appeal Judgement, para. 413. Martić Appeal Judgement, para. 169. [4] Brđanin Appeal Judgement, para. 410. [5] Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168. [6] Ibid. [7] Whether those findings withstand other challenges on appeal – in particular, whether they were open to a reasonable trier of fact – is left for later consideration as necessary. [8] Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168. [9] Cf. Martić Appeal Judgement, para. 181. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 27.09.2007 |
LIMAJ et al. (IT-03-66-A) |
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119. […] In general, in the case of a third category joint criminal enterprise, the crimes must be committed by members of the joint criminal enterprise.[1] […] 120. Furthermore, the Appeals Chamber finds that Haradin Bala, even if he were a member of a systemic joint criminal enterprise, could not be convicted for having used “outsiders” to commit crimes in the camp. In this context, the Appeals Chamber recalls its finding in Brđanin that to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2] The Appeals Chamber notes, however, that it was neither argued at trial nor on appeal whether Haradin Bala could incur systemic joint criminal enterprise liability for crimes committed by non-members of the enterprise. Furthermore, the Appeals Chamber recalls its finding in Brđanin that it would be unfair to enter new convictions in that case on the basis that principal perpetrators do not need to be members of the joint criminal enterprise, as this was not litigated at trial.[3] This reasoning also applies in the present case. [1] See Tadić Appeal Judgement, para. 220. [2] Brđanin Appeal Judgement, para. 413. [3] Brđanin Appeal Judgement, para. 361. |
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