30 May 2013 - ICTY

49248
deportation, it would still need to be determined whether the Accused’s intent was directed
towards both these aspects of the operations. Is it the only reasonable interpretation of the
evidence to infer from it that the Accused shared the common criminal purpose? In my view,
there is an alternative interpretation which cannot be disqualified as unreasonable.
2414. The charges in this case were primarily brought under the notion of a joint criminal
enterprise. Criminal responsibility under a joint criminal enterprise attaches if its members
intended to achieve the common purpose through the commission of the crimes charged. As
may already be clear from the Judgement’s review of the applicable law, dolus eventualis
does not meet the mens rea requirement for a participant of a joint criminal enterprise. 5109 The
Prosecution must prove beyond a reasonable doubt that the participants, specifically here the
Accused, shared the intent to forcibly and permanently remove the najority of non-Serbs from
large parts of Croatia and Bosnia-Herzegovina at least through deportation and forcible
transfer. 5110 Once that is established, the individual criminal responsibility may be expanded
by also considering crimes that were a foreseeable consequence for the members of the joint
criminal enterprise (the so-called “JCE III test”). To attach criminal responsibility for crimes
committed as a foreseeable consequence of the crimes that were intended to be committed is
only permitted where it has first been established that the “core” crimes of the joint criminal
enterprise (the so-called “JCE I”) were intended. To hold otherwise would eradicate the
differences between the concepts of JCE I and JCE III and further broaden the applicability of
the joint criminal enterprise construction.
2415. The evidence is in some instances sufficient to conclude that the Accused were aware
of the likelihood that crimes would be committed during the operations. These operations
benefited from the Accused’s assistance by way of preparing and supporting. The evidence
indicates, in my view, that the Accused could also have been indifferent to any crimes being
committed during the operations. It is insufficient however to convince me beyond a
reasonable doubt that the Accused intended them to be committed. That would not be the only
reasonable inference to be made from the evidence presented. Another inference, also
reasonable in my view, would be that the Accused wanted to assist in establishing and
5109 Criminal intent often includes recklessness also known as dolus eventualis. The definition of dolus eventualis
is not always entirely clear but it can be understood as follows. If a person is aware of the substantial likelihood
of risk that his actions may lead to a certain result and that person nevertheless pursues his actions, that person
can be held criminally responsible for having intentionally caused that result irrespective of whether he wanted
that result to occur.
5110 These are the “core crimes” of the alternative JCE III charge. The JCE I charge also includes murder and
persecution as “core crimes”. I note that murder is also charged as a means of deportation and forcible transfer
though.
Case No. IT-03-69-T 870
30 May 2013