30 May 2013 - ICTY
30 May 2013 - ICTY 30 May 2013 - ICTY
49674 of that design. 2186 There are two additional requirements for this form, one objective, the other subjective. 2187 The objective element does not depend upon the accused’s state of mind. This is the requirement that the resulting crime was a natural and foreseeable consequence of the JCE’s execution. It is to be distinguished from the subjective state of mind, namely that the accused was aware that the resulting crime was a possible consequence of the execution of the JCE, and participated with that awareness. 2188 1258. To summarize the elements of the first and third forms of JCE: (i) Plurality of persons. A joint criminal enterprise exists when a plurality of persons participates in the realization of a common criminal objective. 2189 The persons participating in the criminal enterprise need not be organized in a military, political, or administrative structure. 2190 They must be identified with specificity, for instance by name or by categories or groups of persons. 2191 (ii) A common objective which amounts to or involves the commission of a crime provided for in the Statute. The first form of the JCE exists where the common objective amounts to, or involves the commission of a crime provided for in the Statute. The mens rea required for the first form is that the JCE participants, including the accused person, had a common state of mind, namely the state of mind of intent in relation to the statutory crime(s) through which the common objective were to be achieved. 2192 The third form of the JCE depends on whether it is natural and foreseeable that the execution of the JCE in its first form will lead to the commission of one or more other statutory crimes. In addition to the intent of the first form, the third form requires proof that the accused person took the risk that another statutory crime, not forming part of the common criminal objective, but nevertheless being a natural and foreseeable consequence of the JCE, would be committed. 2193 2185 Tadić Appeal Judgement, paras 202-203. For the notion of “system”, see Krnojelac Appeal Judgement, para. 89, and Vasiljević Appeal Judgement, para. 105. 2186 Tadić Appeal Judgement, para. 204; Prosecutor v. Radovan Karadžić, Appeals Chamber, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Forseeability, 25 June 2009, para. 18. 2187 Prosecutor v. Radoslav Brđanin and Momir Talić, Trial Chamber, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, paras 28-30; Haradinaj et al. Trial Judgement, para. 137. 2188 Blaškić Appeal Judgement, para. 33; Haradinaj et al. Trial Judgement, para. 137. 2189 Kvočka et al. Trial Judgement, para. 307; Haradinaj et al. Trial Judgement, para. 138. 2190 Tadić Appeal Judgement, para. 227. 2191 Brđanin Appeal Judgement, para. 430; Krajišnik Appeal Judgement, paras 156-157. 2192 Tadić Appeal Judgement, paras 227-228; Krajišnik Appeal Judgement, paras 200, 707. 2193 Tadić Appeal Judgement, paras 227-228; Blaškić Appeal Judgement, para. 33; Martić Appeal Judgement, para. 83; Prosecutor v. Radoslav Brđanin and Momir Talić, Trial Chamber, Decision on Form of Further Case No. IT-03-69-T 444 30 May 2013
49673 According to the Appeals Chamber, the common objective need not have been previously arranged or formulated. 2194 This means that the second JCE element does not presume preparatory planning or explicit agreement among JCE participants, or between JCE participants and third persons. 2195 Moreover, a JCE may exist even if none or only some of the principal perpetrators of the crimes are members of the JCE. For example, a JCE may exist where none of the principal perpetrators are aware of the JCE or its objective, yet are procured by one or more members of the JCE to commit crimes which further that objective. Thus, “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”. 2196 (iii) Participation of the accused in the objective’s implementation. This is achieved by the accused’s commission of a crime forming part of the common objective (and provided for in the Statute). Alternatively, instead of committing the intended crime as a principal perpetrator, the accused’s conduct may satisfy this element if it involved procuring or giving assistance to the execution of a crime forming part of the common objective. 2197 A contribution of an accused person to the JCE need not be, as a matter of law, necessary or substantial, but it should at least be a significant contribution to the crimes for which the accused is found responsible. 2198 1259. In relation to the first two elements of JCE liability, it is the common objective that begins to transform a plurality of persons into a group, or enterprise, because what this plurality then has in common is the particular objective. It is evident, however, that a common objective alone is not always sufficient to determine a group, because different and independent groups may happen to share identical objectives. It is thus the interaction or cooperation among persons – their joint action – in addition to their common objective, that Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 31; Krstić Trial Judgement, para. 613; Haradinaj et al. Trial Judgement, para. 138. It follows from that and the above that the first form of the JCE requires intent in the sense of dolus directus, and that recklessness or dolus eventualis does not suffice. 2194 Tadić Appeal Judgement, para. 227. 2195 Kvočka et al. Appeal Judgement, paras 115-119; Brđanin Appeal Judgement, para. 418, Haradinaj et al. Trial Judgement, para. 138. 2196 Brđanin Appeal Judgement, para. 413; Martić Appeal Judgement, para. 168; Krajišnik Appeal Judgement, paras 225-226, 235. 2197 Tadić Appeal Judgement, para. 227; Prosecutor v. Milorad Krnojelac, Trial Chamber, Decision on Form of Second Amended Indictment, 11 May 2000, para. 15; Krajišnik Appeal Judgement, paras 215, 218, 695. 2198 Kvočka et al. Appeal Judgement, paras 97-98; Brđanin Appeal Judgement, para. 430; Krajišnik Appeal Judgement, paras 215, 662, 675, 695-696. Case No. IT-03-69-T 445 30 May 2013
- Page 1 and 2: IT-03-69-T D49681 - D49230 49681 UN
- Page 3 and 4: 49679 3.4.2 Incidents of deportatio
- Page 5 and 6: 49677 Operation Pauk November 1994-
- Page 7: 49675 5. The law on responsibility
- Page 11 and 12: 49671 the plan be executed in the a
- Page 13 and 14: 49669 6. The Accused’s responsibi
- Page 15 and 16: 49667 criminal enterprise in Belgra
- Page 17 and 18: 49665 employ assets and methods, an
- Page 19 and 20: 49663 disclosed confidential inform
- Page 21 and 22: 49661 1281. In relation to the inve
- Page 23 and 24: 49659 1286. Based on the foregoing,
- Page 25 and 26: 49657 members of the unit did not i
- Page 27 and 28: 49655 Serb from Knin municipality,
- Page 29 and 30: 49653 1302. The Trial Chamber now t
- Page 31 and 32: 49651 further engagement. Simatovi
- Page 33 and 34: 49649 the media portrayed the train
- Page 35 and 36: 49647 Captain Dragan provided train
- Page 37 and 38: 49645 Crnogorac), Dragan Pupovac, a
- Page 39 and 40: 49643 witness, the MUP in Knin and
- Page 41 and 42: 49641 Knin, though he knew he had s
- Page 43 and 44: 49639 back to their original police
- Page 45 and 46: 49637 but then returned to the Kraj
- Page 47 and 48: 49635 1360. Contrary to the Defence
- Page 49 and 50: 49633 commander Živojin Ivanović
- Page 51 and 52: 49631 Knin Fortress and Korenica ca
- Page 53 and 54: 49629 written autobiographies, Mile
- Page 55 and 56: 49627 1390. Witness JF-039 testifie
- Page 57 and 58: 49625 fortress between October and
49674<br />
of that design. 2186 There are two additional requirements for this form, one objective, the other<br />
subjective. 2187 The objective element does not depend upon the accused’s state of mind. This<br />
is the requirement that the resulting crime was a natural and foreseeable consequence of the<br />
JCE’s execution. It is to be distinguished from the subjective state of mind, namely that the<br />
accused was aware that the resulting crime was a possible consequence of the execution of the<br />
JCE, and participated with that awareness. 2188<br />
1258. To summarize the elements of the first and third forms of JCE:<br />
(i) Plurality of persons. A joint criminal enterprise exists when a plurality of persons<br />
participates in the realization of a common criminal objective. 2189 The persons participating in<br />
the criminal enterprise need not be organized in a military, political, or administrative<br />
structure. 2190 They must be identified with specificity, for instance by name or by categories<br />
or groups of persons. 2191<br />
(ii) A common objective which amounts to or involves the commission of a crime<br />
provided for in the Statute. The first form of the JCE exists where the common objective<br />
amounts to, or involves the commission of a crime provided for in the Statute. The mens rea<br />
required for the first form is that the JCE participants, including the accused person, had a<br />
common state of mind, namely the state of mind of intent in relation to the statutory crime(s)<br />
through which the common objective were to be achieved. 2192<br />
The third form of the JCE depends on whether it is natural and foreseeable that the execution<br />
of the JCE in its first form will lead to the commission of one or more other statutory crimes.<br />
In addition to the intent of the first form, the third form requires proof that the accused person<br />
took the risk that another statutory crime, not forming part of the common criminal objective,<br />
but nevertheless being a natural and foreseeable consequence of the JCE, would be<br />
committed. 2193<br />
2185 Tadić Appeal Judgement, paras 202-203. For the notion of “system”, see Krnojelac Appeal Judgement, para.<br />
89, and Vasiljević Appeal Judgement, para. 105.<br />
2186 Tadić Appeal Judgement, para. 204; Prosecutor v. Radovan Karadžić, Appeals Chamber, Decision on<br />
Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Forseeability, 25 June 2009, para. 18.<br />
2187 Prosecutor v. Radoslav Brđanin and Momir Talić, Trial Chamber, Decision on Form of Further Amended<br />
Indictment and Prosecution Application to Amend, 26 June 2001, paras 28-<strong>30</strong>; Haradinaj et al. Trial Judgement,<br />
para. 137.<br />
2188 Blaškić Appeal Judgement, para. 33; Haradinaj et al. Trial Judgement, para. 137.<br />
2189 Kvočka et al. Trial Judgement, para. <strong>30</strong>7; Haradinaj et al. Trial Judgement, para. 138.<br />
2190 Tadić Appeal Judgement, para. 227.<br />
2191 Brđanin Appeal Judgement, para. 4<strong>30</strong>; Krajišnik Appeal Judgement, paras 156-157.<br />
2192 Tadić Appeal Judgement, paras 227-228; Krajišnik Appeal Judgement, paras 200, 707.<br />
2193 Tadić Appeal Judgement, paras 227-228; Blaškić Appeal Judgement, para. 33; Martić Appeal Judgement,<br />
para. 83; Prosecutor v. Radoslav Brđanin and Momir Talić, Trial Chamber, Decision on Form of Further<br />
Case No. IT-03-69-T 444<br />
<strong>30</strong> <strong>May</strong> <strong>2013</strong>
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