Table of contents:
Element:
A. Evidentiary comment:
There is some ambiguity in the wording of this requirement. So far as it refers back to the chapeau of article 25(3)(d) it is not clear whether "the criminal activity or criminal purpose" is meant to be the "common purpose" or the "commission or attempted commission of a crime". That is, on the face of the provision it is not clear whether the person is required to have acted with the aim of furthering the common purpose or of furthering the crime. Eser takes the view that the words refer to the common purpose, although he doesnt give any specific basis for that position: Eser, in Cassese, vol. 1 p.803. Triffterer merely states that the person must act "with the specific intention to promote the practical acts and ideological objectives of the group." Although the language is not clear, it is distinct from that used in para. (ii) which refers specifically to "the crime", and this may be a justification for viewing it as a reference to the common purpose. A more significant reason is that if the accused could be shown to have an intention to contribute to the crime itself then joint commission under article 25(3)(a) would be a more appropriate form of liability than article 25(3)(d) (see discussion above at p.3)
No specific equivalent subjective element exists in the jurisprudence of the ICTY. However, the first mens rea requirement for its "third" type of joint criminal enterprise is similar. That requirement is that the person must have "the intention to take part in a joint criminal enterprise and to further individually and jointly the criminal purpose of that enterprise" (Tadić Appeals Chamber, para. 220). (This type of joint criminal enterprise also has an additional requirement relating to foreseeabiltiy, however this is not required by article 25(3)(d)). It may therefore be that the type of evidence that has been accepted by the ICTY as proving this requirement is also relevant to article 25(3)(d)(i) cases.
Those cases dealing with the "second" type of joint criminal enterprise, notably Kvočka and Krnojelac, also deal generally with an accuseds intention to further the joint criminal enterprise, although technically the requirement is for an intention to further a "system". It may be that the evidence relied on by the ICTY in this respect may be similar to that which might be useful in proving that an accused acted with the aim of furthering a criminal activity or criminal purpose under article 25(3)(d)(i).
In most cases the intention of the accused to further the common purpose is likely to be inferred from evidence that he or she either (i) actively participated in the activities of the group pursuant to that purpose, or (ii) was involved in (particularly through a position of authority) and knew of the existence of a common purpose and did not remove him or herself from it.
M.P.11. Evidence of participating in criminal acts in pursuance of the common purpose.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 404, 499:
"404. The evidence is sufficient to conclude that Kvočkas participation in the camp was not only knowing, it was willing. Even though criminal activity against the detainees was part and parcel of everyday life in Omarska, Kvočka continued to show up for work and actively participate in its functioning. This knowing and continued participation enabled the camp to continue its abusive policies and practices."
"499. The Trial Chamber has found that Kos was well aware of the atrocious conditions in the camp. Kos intent to further the joint criminal enterprise can be inferred from his continued and extensive presence as a guard shift leader in the camp, as well as his personal and direct implication in crimes of violence, harassment, and intimidation committed against detainees."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 232:
"232. The Appellant was an armed member of an armed group that, in the context of the conflict in the Prijedor region, attacked Jaskici on 14 June 1992. The Trial Chamber found the following:
The Appellant actively took part in this attack, rounding up and severely beating some of the men from Jaskici. As the Trial Chamber further noted:
Accordingly, the only possible inference to be drawn is that the Appellant had the intention to further the criminal purpose to rid the Prijedor region of the non-Serb population, by committing inhumane acts against them. [ ]"
A. Evidentiary comment:
In several "system" joint criminal enterprise cases the ICTY has inferred from a persons involvement in and knowledge of a particular system that that person intended to further the system. The classic example of this is the situation of a person of authority in a camp or detention centre who knows that the camp is part of a joint criminal enterprise and does not cease his or her involvement. From this the Tribunal has been willing to infer that that person intended to further the purpose of the enterprise. However, there may be a wider category of cases in which a persons knowledge of and continued involvement in a common purpose could be used to infer his or her intention to further that purpose.
M.P.12.1. Evidence relating to the persons position of authority
A. Legal source/authority and evidence:
ICC, The Prosecutor v. Laurent Gbagbo , ICC-02/11-01/11, Decision on the confirmation of charges (PTC), 12 June 2014, para. 258:
"258. The Chamber finds that Laurent Gbagbo shared the common purpose of the group which involved the commission of crimes within the jurisdiction of the Court and, therefore, carried out his contribution with the aim of furthering such criminal purpose of the group. The Chamber bases this finding on evidence regarding: (i) Laurent Gbagbos relations with a limited number of close associates who shared his objective of staying in power and coordinated with him the means to achieve this goal; (ii) Laurent Gbagbos public statements which indicate an intention to hold on to power at any cost, including by use of force against civilians; (iii) the nature of the campaign activities which were aimed at mobilising supporters for the possible use of violence and which began well in advance of the violence at issue in the present case; (iv) the mobilisation of the youth for violent acts; (v) the activities in anticipation of the use of violence such as securing the allegiance of the FDS, acquisition of weapons, recruitment into the FDS, recruitment, training and supplying of loyal militias, and recruitment and financing of mercenaries; (vi) the interaction between Laurent Gbagbo and members of his inner circle, and the forces under their control, including by way of meetings and instructions to units on the ground during the crisis; (vii) the steps undertaken by Laurent Gbagbo and members of his inner circle in reaction to the evolution of the crisis. Additional indicators for the finding that Laurent Gbagbo contributed with the aim of furthering the common purpose of the group are the blockade of the Golf Hotel and the lack of genuine investigations into allegations of civilian casualties."
Prosecutor v. Milan Babić, Case No. IT-03-72-S, Judgement (TC), 29 June 2004, para. 40:
"Babić voluntarily and intentionally participated in the JCE in pursuit of its criminal
objective. Although he claimed not to know about the scale of the crimes of imprisonment, forcible transfer or deportation, and destruction of property, and although he denied wishing the murders listed in the Indictment, there is no doubt that Babić participated in the JCE as a co-perpetrator. Babić did not react appropriately or distance himself from the JCE when he learned about the killings which as he admits were the foreseeable result of the JCE. Babićs continued participation in the crime of persecution, to the extent described above, displayed an intention to participate in the persecutory acts and awareness that he would incur responsibility for crimes which he came to know about and which were the foreseeable consequence of the implementation of the JCE.Prosecutor v. Milan Babić, Case No. IT-03-72-S, Judgement (AC), 18 July 2005, paras. 24 25:
24. The Appeals Chamber finds that it is clear in the Sentencing Judgement that the Trial Chamber acknowledged this point, but concluded that there was nevertheless "no doubt" that the Appellant participated as a co-perpetrator in the joint criminal enterprise. The Trial Chamber explained that (1) when he did become aware of the commission of those other crimes, the Appellant continued to participate in the joint criminal enterprise rather than distancing himself from it; and (2) the crimes were in any event foreseeable, as the Appellant had admitted. 66
25. The Appeals Chamber further finds that the Trial Chamber was correct to conclude that the Appellants claim as to the limited degree of his awareness of those other crimes did not minimize the degree of his liability for personal participation in the joint criminal enterprise.67 The Trial Chamber assessed this liability on the basis of the Appellants acts, including, inter alia, providing financial and political support to others as well as making ethnically based inflammatory speeches.68 On the basis of those acts alone, and not of the degree of the Appellants awareness of other crimes being committed, the Trial Chamber concluded that it "did not accept that [his] role in the [joint criminal enterprise] was as limited as the parties suggest it was".69 With regard to the degree of the Appellants knowledge as to those other crimes being committed, the Trial Chamber correctly indicated that this was a separate issue relevant for his liability for secondary crimes committed as a foreseeable consequence of the joint criminal enterprise.70 Therefore, this part of the Appellants second ground of appeal is dismissed."
66 Sentencing Judgement, para. 40.
67 Ibid.
68 Ibid., para. 79.
69 Ibid.
70 Ibid., paras 39-40.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 111:
"111. The Appeals Chamber holds that, with regard to Krnojelacs duties, the time over which he exercised those duties, his knowledge of the system in place, the crimes committed as part of that system and their discriminatory nature, a trier of fact should reasonably have inferred from the above findings that he was part of the system and thereby intended to further it. [ ]"
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 398, 405 408, 497 500:
"398. Kvočka functioned as Zeljko Meakics deputy in Omarska camp, a joint criminal enterprise. He was an experienced and respected policeman and was one of the few active-duty policemen in the camp. He undoubtedly wielded considerable influence."
"405. Kvočkas continued participation in Omarska camp sent a message of approval to other participants in the camps operation, specifically guards in a subordinate position to him, and was a condonation of the abuses and deplorable conditions there.
406. The Trial Chamber finds that Kvočkas contribution to the functioning of Omarska camp was significant. He played a key role in the administration and functioning of the camp as Zeljko Meakics deputy and as an experienced police officer. He knew that the detainees subjected to the abusive treatment and conditions were of non -Serb origin and that their religion, political views, and ethnicity were the reasons they were detained and abused.
407. Kvočkas knowledge of the criminal nature of the camp system in which he worked, including its discriminatory practices, combined with his willingness to continue in a position of authority and influence, demonstrates that he was substantially involved in the common criminal enterprise. Kvočka was more than merely a passive or reluctant participant in the criminal enterprise. He actively contributed to the everyday functioning and maintenance of the camp and he remained culpably indifferent to the crimes committed therein. His participation enabled the camp to continue unabated its insidious policies and practices.
408. The Trial Chamber finds beyond reasonable doubt that Kvočka was aware of the context of persecution and ethnic violence prevalent in the camp and he knew that his work in the camp facilitated the commission of crimes. Kvočka is responsible for the crimes committed in Omarska camp, which was a joint criminal enterprise."
"497. Kos was a guard shift leader in Omarska camp, a joint criminal enterprise, and he remained in this position for almost the entire period of the camps existence . As a guard shift leader, Kos was in a position of authority over guards on his shift. There was substantial evidence presented that the guards on Kos shift beat detainees, sometimes in his presence, and he not only failed to object, but participated on occasion. In the chain of command of the police security forces, guard shift leaders ranked third after the commander and deputy commander of the camp. Maintaining the guard station and supervising the guards were crucial positions in the camp, positions afforded to only three individuals who were each responsible for the guards on one of the three shifts. The guard shift leader position was integral to the efficient and effective functioning of the camp.
498. Kos faithfully performed his responsibilities as a guard shift leader. Evidence discloses that Kos was in a position to assist, direct, and supervise guards on his shift. Kos was also in a position to assist detainees and to prevent the abuse of detainees during his shift. Some witnesses testified that Kos shift was relatively better that Radics shift, as there were fewer abuses, although plenty of abuses still occurred.
499. The Trial Chamber has found that Kos was well aware of the atrocious conditions in the camp. Kos intent to further the joint criminal enterprise can be inferred from his continued and extensive presence as a guard shift leader in the camp, as well as his personal and direct implication in crimes of violence, harassment, and intimidation committed against detainees."
500. The Trial Chamber finds that Kos contribution to the maintenance and functioning of Omarska camp as a guard shift leader was substantial. It further finds that he knowingly and intentionally contributed to the furtherance of the joint criminal enterprise."
