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V) INDIVIDUAL RESPONSIBILITY (Article 7(1))

a) Statute

ICTY Statute, Article 7(1):

“A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.”

b) Generally

i) criminal responsibility of superiors under Article 7(1)

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 367: “Article 7(1) is concerned with persons directly responsible for planning, instigating, ordering, committing, or aiding and abetting in the planning, preparation or execution of a crime. Thus, both the individual who himself carries out the unlawful conduct and his superior who is involved in the conduct not by physical participation, but for example by ordering or instigating it, are covered by Article 7(1). For instance, a superior who orders the killing of a civilian may be held responsible under Article 7(1), as might a political leader who plans that certain civilians or groups of civilians should be executed, and passes these instructions on to a military commander. The criminal responsibility of such superiors, either military or civilian, in these circumstances is personal or direct, as a result of their direct link to the physical commission of the crime. The criminal responsibility of a superior for such positive acts, except where the superior orders the crime in which case he may be more appropriately referred to as primarily responsible for its commission, may be regarded as ‘follow(ing) from general principles of accomplice liability.’”

ii) overlap of Articles 7(1) and 7(3)

Krstic, (Trial Chamber), August 2, 2001, para. 605: “[T]he Trial Chamber adheres to the belief that where a commander participates in the commission of a crime through his subordinates, by ‘planning,’ ‘instigating’ or ‘ordering’ the commission of the crime, any responsibility under Article 7(3) is subsumed under Article 7(1). The same applies to the commander who incurs criminal responsibility under the joint criminal enterprise doctrine through the physical acts of his subordinates.”

But see Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 79, 81: “The Krnojelac Trial Chamber stated that as it is inappropriate to convict [persons] under both [Articles 7(1) and 7(3)] for the same conduct, [; therefore] the Trial Chamber has the discretion to choose which is the most appropriate one.” “The Chamber follows the finding of the Krnojelac Trial Chamber by choosing between Article 7(1) and Article 7(3) of the Statute the most appropriate form of responsibility.”

Compare Blaskic, (Trial Chamber), March 3, 2000, para. 337: “[T]he failure to punish past crimes, which entails the commander’s responsibility under Article 7(3), may, pursuant to Article 7(1) and subject to the fulfilment of the respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting or instigating the commission of further crimes.”

See also “proving responsibility under both Article 7(1) and Article 7(3)” as impacting on sentencing, Section (X)(b)(iii)(3)(k), ICTY Digest.

c) Planning, instigating, ordering, committing

i) mental state (mens rea) generally

Blaskic, (Trial Chamber), March 3, 2000, para. 278: “[P]roof is required that whoever planned, instigated or ordered the commission of a crime possessed the criminal intent, that is, that he directly or indirectly intended that the crime in question be committed. [I]n general, a person other than the person who planned, instigated or ordered is the one who perpetrated the actus reus of the offence.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 386: “[A]n accused will only be held responsible for planning, instigating or ordering a crime if he directly or indirectly intended that the crime be committed.”

ii) planning

Blaskic, (Trial Chamber), March 3, 2000, para. 279: “[P]lanning implies that ‘one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.’”

Krstic, (Trial Chamber), August 2, 2001, para. 601: “‘Planning’ means that one or more persons design the commission of a crime at both the preparatory and execution phases.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 386: “[P]lanning constitutes a discrete form of responsibility under Article 7(1) of the Statute, and . . . an accused may be held criminally responsible for planning alone.”

(1) person who committed crime cannot also be held responsible for planning it

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 386: “[A] person found to have committed a crime will not be found responsible for planning the same crime.”

(2) circumstantial evidence may prove plan

Blaskic, (Trial Chamber), March 3, 2000, para. 279: “[C]ircumstantial evidence may provide sufficient proof of the existence of a plan.”

iii) instigating

(1) generally

Krstic, (Trial Chamber), August 2, 2001, para. 601: “‘Instigating’ means prompting another to commit an offence.” See also Blaskic, (Trial Chamber), March 3, 2000, para. 280 (same).

(2) the act (actus reus)

(a) requires a clear contribution to the conduct of the other person, but unnecessary to show that the crime would not have occurred without the accused’s involvement

Kvocka et al., (Trial Chamber), November 2, 2001, para. 252: “The actus reus required for ‘instigating’ a crime is any conduct by the accused prompting another person to act in a particular way. This element is satisfied if it is shown that the conduct of the accused was a clear contributing factor to the conduct of the other person(s). It is not necessary to demonstrate that the crime would not have occurred without the accused’s involvement.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 60: “The actus reus requires a clear contribution to the act of the other person, but it needs not to be shown that the offence would not have been perpetrated without the participation of the accused.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 387: “Although a causal relationship between the instigation and the physical perpetration of the crime needs to be demonstrated (i.e., that the contribution of the accused in fact had an effect on the commission of the crime), it is not necessary to prove that the crime would not have been perpetrated without the accused’s involvement.”

Blaskic, (Trial Chamber), March 3, 2000, para. 278, 280: “In the case of instigating . . . proof is required of a causal connection between the instigation and the fulfilment of the actus reus of the crime.” “The ordinary meaning of instigating, namely, ‘bring about’ the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof.”

(b) both positive acts and omissions may constitute instigating, as well as express and implied conduct

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 387: “Both positive acts and omissions may constitute instigation. . . .”

Blaskic, (Trial Chamber), March 3, 2000, para. 280: “The wording [instigating] is sufficiently broad to allow for the inference that both acts and omissions may constitute instigating and that this notion covers both express and implied conduct.”

(3) mental state (mens rea)

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 60: “The requisite mens rea [for instigating] is that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts.” See also Kvocka et al., (Trial Chamber), November 2, 2001, para. 252 (same).

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 387: “[I]t must be proved that the accused directly intended to provoke the commission of the crime.”

iv) ordering

(1) generally

Krstic, (Trial Chamber), August 2, 2001, para. 601: “‘Ordering’ entails a person in a position of authority using that position to convince another to commit an offence.”

(2) order may be explicit or implicit, and proven through circumstantial evidence

Blaskic, (Trial Chamber), March 3, 2000, para. 281: “It is not necessary that an order be given in writing or in any particular form. It can be explicit or implicit. The fact that an order was given can be proved through circumstantial evidence.”

(3) order need not be given directly to person who performs the offense

Blaskic, (Trial Chamber), March 3, 2000, para. 282: “[A]n order does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. [W]hat is important is the commander’s mens rea, not that of the subordinate executing the order.”

(4) no formal superior-subordinate relationship required

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 388: “[N]o formal superior-subordinate relationship is required for a finding of ‘ordering’ so long as it is demonstrated that the accused possessed the authority to order.”

(5) irrelevant whether the illegality of the order was apparent on its face

Blaskic, (Trial Chamber), March 3, 2000, para. 282: “[I]t is irrelevant whether the illegality of the order was apparent on its face.”

v) committing

(1) generally

Krstic, (Trial Chamber), August 2, 2001, para. 601: “‘Committing’ covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law.”

(2) the act (actus reus)

(a) involves direct personal or physical participation

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 376: “[A]ny finding of direct commission requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the International Tribunal’s Statute with the requisite knowledge.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 251: “The actus reus required for committing a crime is that the accused participated, physically or otherwise directly, in the material elements of a crime under the Tribunal’s Statute. . . .”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 62: “The Accused will only incur individual criminal responsibility for committing a crime under Article 7(1) where it is proved that he personally physically perpetrated the criminal act in question or personally omitted to do something in violation of international humanitarian law.”

(b) alternatively, can involve a culpable omission

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 390: “An individual can be said to have ‘committed’ a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 251: Committing can be through “through positive acts or omissions. . . .”

(c) there can be several perpetrators of the same crime

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 390: “There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfills the requisite elements of the definition of the substantive offence.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 251: Committing may be done “individually or jointly with others.”

(3) mental state (mens rea)

Kvocka et al., (Trial Chamber), November 2, 2001, para. 251: “The requisite mens rea [for committing a crime] is that, as in other forms of criminal participation under Article 7(1), the accused acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct.”

d) Aiding and abetting

i) generally

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 391: “As opposed to the ‘commission’ of a crime, aiding and abetting is a form of accessory liability.”

ii) based on customary international law

Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber), May 7, 1997, para. 666: “The concept of direct individual criminal responsibility and personal culpability for assisting, aiding and abetting, or participating in, in contrast to the direct commission of, a criminal endeavour or act . . . has a basis in customary international law.”

iii) defined

Krstic, (Trial Chamber), August 2, 2001, para. 601: “‘Aiding and abetting’ means rendering a substantial contribution to the commission of a crime.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 254: “[A]iding and abetting, ‘which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto.’”

Tadic, (Trial Chamber), May 7, 1997, para. 689: “[A]iding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present.”

iv) the act (actus reus)

(1) requires practical assistance, encouragement or moral support

Furundzija, (Trial Chamber), December 10, 1998, para. 235, 249: “[T]he actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 70: “An accused will incur individual criminal responsibility for aiding and abetting a crime under Article 7(1) where it is demonstrated that the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal offender of the crime.”

(2) may occur through an omission

Blaskic, (Trial Chamber), March 3, 2000, para. 284: “[T]he actus reus of aiding and abetting may be perpetrated through an omission, provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 70: “The act of assistance may be either an act or omission. . . .”

(3) must have a substantial effect on the commission of the crime

Vasiljevic, (Trial Chamber), November 29, 2002, para. 70: “The act of assistance need not have caused the act of the principal offender, but it must have had a substantial effect on the commission of the crime by the principal offender.”

Furundzija, (Trial Chamber), December 10, 1998, para. 234: “The position under customary international law seems . . . to be best reflected in the proposition that the assistance must have a substantial effect on the commission of the crime.”

Tadic, (Trial Chamber), May 7, 1997, para. 691: “[T]he acts of the accused must be direct and substantial.”

Blaskic, (Trial Chamber), March 3, 2000, para. 285: “Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required.”

(4) presence at scene

(a) is not conclusive, unless it demonstrates a significant encouraging effect or a direct and substantial effect

Vasiljevic, (Trial Chamber), November 29, 2002, para. 70: “Mere presence at the scene of the crime is not conclusive of aiding and abetting unless it is demonstrated to have a significant encouraging effect on the principal offender.”

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 393: “Presence alone at the scene of the crime is not conclusive of aiding or abetting, unless it is shown to have a significant legitimising or encouraging effect on the principal.”

Tadic, (Trial Chamber), May 7, 1997, para. 689: “[P]resence alone is not sufficient if it is an ignorant or unwilling presence. However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it.”

Aleksovski, (Trial Chamber), June 25, 1999, para. 64: “Mere presence constitutes sufficient participation under some circumstances so long as it was proved that the presence had a significant effect on the commission of the crime by promoting it and that the person present had the required mens rea.”

(b) example

Tadic, (Trial Chamber), May 7, 1997, para. 690: “[W]hen an accused is present and participates in the beating of one person and remains with the group when it moves on to beat another person, his presence would have an encouraging effect, even if he does not physically take part in this second beating, and he should be viewed as participating in this second beating as well. This is assuming that the accused has not actively withdrawn from the group or spoken out against the conduct of the group.”

(c) position of authority and presence may, in some circumstances, be interpreted as approval of the conduct

Blaskic, (Trial Chamber), March 3, 2000, para. 284: “[T]he mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.”

Aleksovski, (Trial Chamber), June 25, 1999, para. 65: “[A]n individual’s position of authority is not sufficient to lead to the conclusion that his mere presence constitutes a sign of encouragement which had a significant effect on the perpetration of the crime. [T]he presence of an individual with uncontested authority over the perpetrators of the unlawful act may, in some circumstances, be interpreted as approval of that conduct. . . . An individual’s authority must therefore be considered to be an important indicium as establishing that his mere presence constitutes an act of intentional participation under Article 7(1). Nonetheless, responsibility is not automatic and merits consideration against the background of the factual circumstances.”

(d) actual physical presence not required

Tadic, (Trial Chamber), May 7, 1997, para. 691: “[A]ctual physical presence when the crime is committed is not necessary . . . an accused can be considered to have participated in the commission of a crime . . . if he is found to be ‘concerned with the killing.’”

(5) assistance may occur before, during or after the act is committed

Vasiljevic, (Trial Chamber), November 29, 2002, para. 70: The act of assistance “may occur before or during the act of the principal offender.”

Blaskic, (Trial Chamber), March 3, 2000, para. 285: “[P]articipation may occur before, during or after the act is committed and be geographically separated therefrom.”

Aleksovski, (Trial Chamber), June 25, 1999, para. 62: “Participation may occur before, during or after the act is committed. It can, for example, consist of providing the means to commit the crime or promising to perform certain acts once the crime has been committed, that is, behaviour which may in fact clearly constitute instigation or abetment of the perpetrators of the crime.”

(6) the aider and abettor will be responsible for all that naturally results from his act

Tadic, (Trial Chamber), May 7, 1997, para. 692: The aider and abettor “will . . . be responsible for all that naturally results from the commission of the act in question.”

v) mental state (mens rea): intent and knowledge

(1) aider and abettor needs to have intended to assist or facilitate, or accepted that assistance would be a possible and foreseeable consequence

Blaskic, (Trial Chamber), March 3, 2000, para. 286: “[T]he 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.” See also Kvocka et al., (Trial Chamber), November 2, 2001, para. 255 (same).

(2) need not know precise crime intended or committed

Furundzija, (Trial Chamber), December 10, 1998, para. 246: “[I]t is not necessary that the aider and abettor should know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.” See also Kvocka et al., (Trial Chamber), November 2, 2001, para. 255 (same).

(3) need not share principal’s intent, but must be aware of essential elements of the crime, including the principal’s mental state

Aleksovski, (Appeals Chamber), March 24, 2000, para. 162: “[I]t is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal. It is clear that what must be shown is that the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.”

Furundzija, (Trial Chamber), December 10, 1998, para. 245: “[I]t is not necessary for the accomplice to share the mens rea of the perpetrator, in the sense of positive intention to commit the crime.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 71: “The aider and abettor must be aware of the essential elements of the crime committed by the principal offender, including the principal offender’s state of mind. However, the aider and abettor need not share the intent of the principal offender. The fact that the aider and abettor does not share the intent of the principal offender generally lessens his criminal culpability from that of an accused acting pursuant to a joint criminal enterprise who does share the intent of the principal offender.”

(4) must have knowledge that actions will assist commission of the crime

Vasiljevic, (Trial Chamber), November 29, 2002, para. 71: “To establish the mens rea of aiding and abetting, it must be demonstrated that the aider and abettor knew (in the sense that he was aware) that his own acts assisted in the commission of the specific crime in question by the principal offender.”

Blaskic, (Trial Chamber), March 3, 2000, para. 286: It is necessary to show “knowledge that [the] acts [at issue] assist the commission of the crime. . . .”

Furundzija, (Trial Chamber), December 10, 1998, para. 245, 249: “[T]he clear requirement in the vast majority of the cases is for the accomplice to have knowledge that his actions will assist the perpetrator in the commission of the crime.” “The mens rea required is the knowledge that these acts assist the commission of the offence.”

(5) mental state (mens rea) may be deduced from circumstances, such as position of authority and presence

Aleksovski, (Trial Chamber), June 25, 1999, para. 65: “The mens rea may be deduced from the circumstances, and the position of authority constitutes one of the circumstances which can be considered when establishing that the person against whom the claim is directed knew that his presence would be interpreted by the perpetrator of the wrongful act as a sign of support or encouragement.”

(6) mental state (mens rea) for aider and abettor of persecution

Kvocka et al., (Trial Chamber), November 2, 2001, para. 262: “The aider or abettor of persecution, as a ‘special intent’ crime, must not only have knowledge of the crime he is assisting or facilitating. He must also be aware that the crimes being assisted or supported are committed with a discriminatory intent. The aider or abettor of persecution does not need to share the discriminatory intent, but must be aware of the broader discriminatory context and know that his acts of assistance or encouragement have a significant effect on the commission of the crimes. Each and every act of discrimination need not be known or intended by the aider or abettor. The aider or abettor of persecution will thus be held responsible for discriminatory acts committed by others that were a reasonably foreseeable consequence of their assistance or encouragement.”

vi) difference between “aiding and abetting,” and “participation in a joint criminal enterprise” (i.e., acting pursuant to a common design or purpose)

(1) generally

Blaskic, (Trial Chamber), March 3, 2000, para. 288: “[A] distinction is to be made between aiding and abetting and participation in pursuance of a purpose or common design to commit a crime.”7

Furundzija, (Trial Chamber), December 10, 1998, para. 249: The “notion of aiding and abetting is to be distinguished from the notion of common design, where the actus reus consists of participation in a joint criminal enterprise and the mens rea required is intent to participate.”

(2) elements distinguished

Tadic, (Appeals Chamber), July 15, 1999, para. 229: The Appeals Chamber distinguished “between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting.” “(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal. (ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contribution. (iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. (iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed). . . .”

(3) mental state (mens rea) distinguished

Tadic, (Appeals Chamber), July 15, 1999, para. 229: “In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed). . . .”

Krnojelac, (Trial Chamber), March 15, 2002, para. 75: “The seriousness of what is done by a participant in a joint criminal enterprise who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender. That is because a person who merely aids and abets the principal offender need only be aware of the intent with which the crime was committed by the principal offender, whereas the participant in a joint criminal enterprise with the principal offender must share that intent.”

(4) application: torture

Furundzija, (Appeals Chamber), July 21, 2000, para. 118: “[T]wo types of liability for criminal participation ‘appear to have crystallised in international law - co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other.’ [T]o distinguish a co-perpetrator from an aider or abettor, ‘it is crucial to ascertain whether the individual who takes part in the torture process also partakes of the purpose behind torture (that is, acts with the intention of obtaining information or a confession, of punishing, intimidating, humiliating or coercing the victim or a third person, or of discriminating, on any ground, against the victim or a third person).’ [T]o be convicted as a co-perpetrator, the accused ‘must participate in an integral part of the torture and partake of the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person.’”

Furundzija, (Trial Chamber), December 10, 1998, para. 257: “(i) [T]o be guilty of torture as a perpetrator (or co-perpetrator), the accused must participate in an integral part of the torture and partake of the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person. (ii) [T]o be guilty of torture as an aider or abettor, the accused must assist in some way which has a substantial effect on the perpetration of the crime and with knowledge that torture is taking place.”

e) Joint criminal enterprise/ the common purpose doctrine

i) generally

Tadic, (Appeals Chamber), July 15, 1999, para. 190: “[T]he Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions.”

Krstic, (Trial Chamber), August 2, 2001, para. 601: “‘Joint criminal enterprise’ liability is a form of criminal responsibility which the Appeals Chamber found to be implicitly included in Article 7(1) of the Statute. It entails individual responsibility for participation in a joint criminal enterprise to commit a crime.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 307: “A joint criminal enterprise can exist whenever two or more people participate in a common criminal endeavor.” “Within a joint criminal enterprise there may be other subsidiary criminal enterprises.”

ii) three categories of common purpose doctrine

Tadic, (Appeals Chamber), July 15, 1999, para. 195-196, 202-204: “[T]he notion of common purpose encompasses three distinct categories of collective criminality.” “The first such category is represented by cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design. . . .”

“The second distinct category of cases is in many respects similar to that set forth above, and embraces the so-called ‘concentration camp’ cases. The notion of common purpose was applied to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; i.e., by groups of persons acting pursuant to a concerted plan.”

“The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.”

For further details regarding these three categories, see Tadic, (Appeals Chamber), July 15, 1999, para. 220.

iii) elements

Tadic, (Appeals Chamber), July 15, 1999, para. 227: “[T]he objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows: i. A plurality of persons. They need not be organised in a military, political or administrative structure . . . ii. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute . . . iii. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 67: “A person participates in a joint criminal enterprise by personally committing the agreed crime as a principal offender, or by assisting the principal offender in committing the agreed crime as a co-perpetrator (by undertaking acts that facilitate the commission of the offence by the principal offender), or by acting in furtherance of a particular system in which the crime is committed by reason of the accused’s position of authority or function, and with knowledge of the nature of that system and intent to further that system. If the agreed crime is committed by one or other of the participants in a joint criminal enterprise such as has already been discussed, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 312: For joint criminal enterprise liability, “an accused must have carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his acts or omissions facilitated the crimes committed through the enterprise in order to be criminally liable as a participant in a joint criminal enterprise.”

(1) need to establish existence of an arrangement or understanding

Tadic, (Appeals Chamber), July 15, 1999, para. 227: One of the required elements is: “[t]he existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 66: “The Prosecution must establish the existence of an arrangement or understanding amounting to an agreement between two or more persons that a particular crime will be committed.”

(a) arrangement need not be express/can be unspoken

Vasiljevic, (Trial Chamber), November 29, 2002, para. 66: “The arrangement or understanding need not be express, and it may be inferred from all the circumstances. The fact that two or more persons are participating together in the commission of a particular crime may itself establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that particular criminal act.”

(b) common plan or purpose may materialize extemporaneously

Tadic, (Appeals Chamber), July 15, 1999, para. 227: “There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise. . . .”

(2) level of participation in joint criminal enterprise must be significant

Kvocka et al., (Trial Chamber), November 2, 2001, para. 309: “The participation in the enterprise must be significant. By significant, the Trial Chamber means an act or omission that makes an enterprise efficient or effective; e.g., a participation that enables the system to run more smoothly or without disruption. Physical or direct perpetration of a serious crime that advances the goal of the criminal enterprise would constitute a significant contribution. [P]articipation would need to be assessed on a case by case basis, especially for low or mid level actors who do not physically perpetrate crimes. It may be that a person with significant authority or influence who knowingly fails to complain or protest automatically provides substantial assistance or support to criminal activity by their approving silence, particularly if present at the scene of criminal activity. In most situations, the aider or abettor or co-perpetrator would not be someone readily replaceable, such that any ‘body’ could fill his place. He would typically hold a higher position in the hierarchy or have special training, skills, or talents.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 311: “The level of participation attributed to the accused and whether that participation is deemed significant will depend on a variety of factors, including the size of the criminal enterprise, the functions performed, the position of the accused, the amount of time spent participating after acquiring knowledge of the criminality of the system, efforts made to prevent criminal activity or to impede the efficient functioning of the system, the seriousness and scope of the crimes committed and the efficiency, zealousness or gratuitous cruelty exhibited in performing the actor’s function. It would also be important to examine any direct evidence of a shared intent or agreement with the criminal endeavor, such as repeated, continuous, or extensive participation in the system, verbal expressions, or physical perpetration of a crime. Perhaps the most important factor to examine is the role the accused played vis--vis the seriousness and scope of the crimes committed.”

(a) level of participation for aider and abettor: must have a substantial effect

Kvocka et al., (Trial Chamber), November 2, 2001, para. 289: “The assistance or facilitation provided by the aider or abettor must of course have a substantial effect on the crime committed by a co-perpetrator. The precise threshold of participation in joint criminal enterprise has not been settled, but the participation must be ‘in some way . . . directed to the furthering of the common plan or purpose.’”

(3) responsibility for crimes outside the common purpose occurs if it was foreseeable that such a crime might be perpetrated and the accused willingly took that risk

Tadic, (Appeals Chamber), July 15, 1999, para. 228: “[R]esponsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.”

(4) whether participation in a joint criminal enterprise is more akin to direct perpetration or accomplice liability

Krstic, (Trial Chamber), August 2, 2001, para. 642-643: “In the Tadic Appeal Judgement, the Appeals Chamber referred to ‘the notion of common design as a form of accomplice liability,’ a phrase upon which Trial Chamber II subsequently relied to distinguish ‘committing’ from ‘common purpose liability’ under Article 7(1). [T]his Trial Chamber views the comment in the Tadic Appeal Judgement as not part of the ratio decidendi of that Judgement and does not believe that Tadic characterisation means that any involvement in a joint criminal enterprise automatically relegates the liability of an accused to that of ‘complicity in genocide’ in Article 4(3)(e). . . . [This] Trial Chamber sees no basis for refusing to accord the status of a co-perpetrator to a member of a joint genocidal enterprise whose participation is of an extremely significant nature and at the leadership level.” “It seems clear that ‘accomplice liability’ denotes a secondary form of participation which stands in contrast to the responsibility of the direct or principal perpetrators. The Trial Chamber is of the view that this distinction coincides with that between ‘genocide’ and ‘complicity in genocide’ in Article 4(3). The question comes down to whether . . . a participant in the criminal enterprise may be most accurately characterised as a direct or principal perpetrator or as a secondary figure in the traditional role of an accomplice.”

But see Krnojelac, (Trial Chamber), March 15, 2002, para. 77: “This Trial Chamber . . . does not . . . accept the validity of the distinction which Trial Chamber I [Krstic] has sought to draw between a co-perpetrator and an accomplice. This Trial Chamber prefers to follow the opinion of the Appeals Chamber in Tadic, that the liability of the participant in a joint criminal enterprise who was not the principal offender is that of an accomplice.”

iv) mental state (mens rea)

(1) if the crime fell within the joint criminal enterprise

(a) must prove common state of mind for co-perpetrator

Krstic, (Trial Chamber), August 2, 2001, para. 613: “If the crime charged fell within the object of the joint criminal enterprise, the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 68-69: For mens rea as to joint criminal enterprise, “[t]he Prosecution must . . . establish that the person charged shared a common state of mind with the person who personally perpetrated the crime charged (the ‘principal offender’) that the crime charged should be carried out, the state of mind required for that crime. Where the Prosecution relies upon proof of state of mind by inference, that inference must be the only reasonable inference available on the evidence. If the Trial Chamber is not satisfied that the Prosecution has proved that the Accused shared the state of mind required for the commission of any of the crimes in which he is alleged to have participated pursuant to a joint criminal enterprise, it may then consider whether it has nevertheless been proved that the Accused incurred criminal responsibility for any of those crimes as an aider and abettor to their commission.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 284, 271: “[A] co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and performs an act or omission in furtherance of the enterprise.” “The shared intent may, and often will, be inferred from knowledge of the plan and participation in its advancement. Acting with such intent express or inferred is usually referred to as acting in pursuance of the common criminal design.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 284: “In the case of a continuing crime . . . the shared intent of an accused participating in a criminal enterprise may be inferred from knowledge of the criminal enterprise and continued participation, if the participation is significant in position or effect.”

See also Tadic, (Appeals Chamber), July 15, 1999, para. 204, for discussion of mens rea required for three categories of common design discussed in Section (V)(e)(ii).

(b) must prove knowing assistance for an aider or abettor

Kvocka et al., (Trial Chamber), November 2, 2001, para. 271: “[L]iability on the basis of a joint criminal enterprise requires a knowing assistance or encouragement for an aider or abettor. . . .”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 284: “[A]n aider or abettor of the joint criminal enterprise need only be aware that his or her contribution is assisting or facilitating a crime committed by the joint criminal enterprise.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 284: “An aider or abettor need not necessarily share the intent of the co-perpetrators.”

(2) if the crime went beyond the enterprise, need to prove that the accused was aware that the further crime was a possible consequence and that, with that awareness, he participated in that enterprise

Krstic, (Trial Chamber), August 2, 2001, para. 613: “If the crime charged went beyond the object of the joint criminal enterprise, the prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of that enterprise and that, with that awareness, he participated in that enterprise.”

See also Tadic, (Appeals Chamber), July 15, 1999, para. 228, for discussion of mens rea required for the third category of common design discussed in Section (V)(e)(ii).

(3) where crime requires special intent, must prove such intent

Kvocka et al., (Trial Chamber), November 2, 2001, para. 288: “Where the crime requires special intent, such as the crime of persecution . . . the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator.”

v) difference between participating in a joint criminal enterprise, and aiding and abetting a joint criminal enterprise

(1) generally

Kvocka et al., (Trial Chamber), November 2, 2001, para. 285, 287: “Depending on the level and nature of participation, the accused is either an aider and abettor or a co-perpetrator of the criminal enterprise.” “The level of participation necessary to render someone a participant in a joint criminal enterprise is less than the level of participation necessary to graduate an aider or abettor to a co-perpetrator of that enterprise.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 312: “The aider or abettor or co-perpetrator of a joint criminal enterprise contributes to the commission of the crimes by playing a role that allows the system or enterprise to continue its functioning.”

(2) mental state (mens rea) compared

See Sections (V)(e)(iv)(1)(a) and (b), ICTY Digest.

(3) when an aider or abettor becomes a co-perpetrator

Kvocka et al., (Trial Chamber), November 2, 2001, para. 284-285: “Eventually, an aider or abettor, one who assists or facilitates the criminal enterprise as an accomplice, may become a co-perpetrator, even without physically committing crimes, if their participation lasts for an extensive period or becomes more directly involved in maintaining the functioning of the enterprise. By sharing the intent of the joint criminal enterprise, the aider or abettor becomes a co-perpetrator. When . . . an accused participates in a crime that advances the goals of the criminal enterprise, it is often reasonable to hold that her form of involvement in the enterprise has graduated to that of a co-perpetrator.” “Once the evidence indicates that a person who substantially assists the enterprise shares the goals of the enterprise, he becomes a co-perpetrator.”

(4) application: participation in operation of a detention facility

Kvocka et al., (Trial Chamber), November 2, 2001, para. 306: “[W]hen a detention facility is operated in a manner which makes the discriminatory and persecutory intent of the operation patently clear, anyone who knowingly participates in any significant way in the operation of the facility or assists or facilitates its activity, incurs individual criminal responsibility for participation in the criminal enterprise, either as a co-perpetrator or an aider and abettor, depending upon his position in the organizational hierarchy and the degree of his participation.”



7 Participation in a joint criminal enterprise, i.e., acting pursuant to a common design or purpose, is discussed in Section (V)(e), ICTY Digest.


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February 2004