Table of contents:
Element:
M.5. The contribution was made in the knowledge of the intention of the group to commit the crime.
A. Evidentiary comment:
None of the forms of joint criminal enterprise recognised in the jurisprudence of the ICTY contains a specific requirement that the accused knew of the intent of the group to commit a crime. As a result, most of the joint criminal enterprise discussions by the ICTY are unhelpful in clarifying the types of evidence that might be used to prove this requirement.
However, the ICTYs approach to aiding and abetting does require that the accused knew of the criminal intent of the principle perpetrator(s): e.g. Aleksovski Appeals Judgment, para. 162, Vasiljević Trial Judgment, paras. 71, 214. For this reason while other aspects of the ICTY case law on aiding and abetting are not helpful in the understanding of article 25(3)(d), it may be useful to consider what types of evidence the ICTY has accepted in that context as sufficient to demonstrate that the accused knew of the criminal intent of the principle perpectrator(s). The same types of evidence are likely to be useful in demonstrating that the requirements of article 25(3)(d)(ii) are met.
For these reasons, in the ICTY cases below conclusions that the accused knew of the intent of the group to commit a crime were reached in the context of findings about aiding and abetting (although in Krnojelac the Appeals Chamber subsequently referred to this finding by the Trial Chamber in the context of joint criminal enterprise).
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, paras. 104 106, 113, 121, 134, 137:
"104. The Trial Chambers reliance upon Radislav Krstics knowledge from this intercept as establishing intent on the part of Krstic to participate in a genocidal plan is unreasonable. Krstics statement to Colonel Beara ("You guys fucked me up so much"), coupled with his next comment, "Fuck it, now Ill be the one to blame," 172 shows at most that Radislav Krstic was aware that killings were occurring.173 The conversation, moreover, easily lends itself to the interpretation that, prior to the conversation, Krstic had no knowledge that Colonel Beara was involved in the execution of Muslims, and was angry with Colonel Beara that responsibility would now be attached to him. Even if it is accepted that the conversation between Radislav Krstic and Colonel Beara related to the execution of Muslim prisoners, it only establishes knowledge on the part of Krstic that genocide was being committed. It cannot establish intent to commit genocide. Likewise, the fact that Krstic suggested that men be taken from his subordinates may support a finding of knowledge that executions of Bosnian Muslims were taking place, but it cannot establish that Radislav Krstic shared the intent to commit genocide. At most, a reasonable trier of fact could conclude that from this time, Krstic had knowledge of the genocidal intent of some members of the VRS Main Staff.
105. The Trial Chamber pointed to the evidence that Colonel Beara was amongst the Command Staff at Zepa along with General Mladic, and was involved in negotiations at Zepa from mid-July 1995, and to evidence of Colonel Beara seeing Radislav Krstic at an UNPROFOR checkpoint in Zepa during the Zepa operation.174 The evidence of such other contacts Krstic had with Colonel Beara during the relevant period is also insufficient to support an inference of genocidal intent on the part of Radislav Krstic.
106. The Trial Chamber referred to the fact that the Defence denied that he had had this conversation with Colonel Beara. It found that at the time the conversation took place on 15 July 1995, Radislav Krstic knew that the executions were occurring, and that he undertook to assist Colonel Beara in obtaining the necessary personnel to carry them out.175 On Appeal, the Defence accepted that the conversation had occurred, but denied that Krstic had acted on Colonel Beara's request. This inconsistency in Krstic's testimony does not, however, establish that Krstic lied in order to hide the fact that he shared the genocidal intent of some members of the Main Staff. As a general principle, where an accused is shown to have lied about a fact during a criminal trial, an inference that he lied to obfuscate his own guilt may only be drawn where all other reasonable possible explanations for that lie have been excluded. The most that can be said about the Defence's inconsistent position is that Radislav Krstic knew, from his conversation with Colonel Beara, that killings were being carried out with genocidal intent. It cannot be concluded, as a result of Krstics inconsistencies, that he subscribed to that genocidal intent. His lie is explicable as a desire to avoid just such an adverse inference being drawn to his detriment, and it cannot support the inference that he shared the genocidal intent of some members of the Main Staff."
"172. T, pp. 340 - 341.
173. Butler Report.
174. Trial Judgement, para. 408.
175. Ibid., para. 385."
"113. Next, the Trial Chamber relied on the evidence of Radislav Krstics frequent contacts with Colonel Popovic during the relevant period.188 On 16 July 1995, an intercepted conversation recorded a request being made to the Drina Corps Command for fuel on behalf of Colonel Popovic, who was in the zone of the Zvornik Brigade. The Zvornik Brigade Duty Officer making the request stated that Colonel Popovic would not continue the work he was doing unless the fuel requested was supplied, and later in the conversation, stated that "the bus loaded with oil is to go to Pilica village." Records for 16 July 1995 confirmed that 500 litres of fuel were dispatched to Colonel Popovic, and the Drina Corps Command is noted as the recipient.189 The Trial Chamber relied upon this evidence to establish that Krstic, as the Commander of the Drina Corps, must have known that the fuel had been allocated to Colonel Popovic and that the fuel was being used to assist Colonel Popovic in the executions.190 Again, the only inference this evidence is capable of sustaining is one of knowledge on the part of Krstic, not of shared genocidal intent."
"188. Ibid., para. 409 - 410.
189. Ibid., para. 242.
190. Ibid., paras. 400 - 410."
"121. In conclusion, Radislav Krstics contacts with those who appeared to be the main participants in the executions establish, at most, that Krstic was aware that those executions were taking place. Radislav Krstics knowledge of those executions is insufficient to support an inference that he shared the intent to commit genocide."
"134. As has been demonstrated, all that the evidence can establish is that Krstic was aware of the intent to commit genocide on the part of some members of the VRS Main Staff [ ]"
"137. As has been found above, it was reasonable for the Trial Chamber to conclude that, at least from 15 July 1995, Radislav Krstic had knowledge of the genocidal intent of some of the Members of the VRS Main Staff. [..]"
M.P.14. Evidence that the person had access to records or other information about the crime.
A. Legal source/authority and evidence:
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 925-926:
"925. The Trial Chamber found that Dorđević shared the intent of the JCE with the common purpose to change the ethnic balance of Kosovo.2734 It found that as a member of the JCE, he was fully aware that this common purpose was to be achieved by creating an atmosphere of terror and fear to induce the Kosovo Albanians to leave, including by subjecting them to persecutions through a variety of means. 2735 Furthermore, the Trial Chamber found that he was aware of the massive displacement of Kosovo Albanian civilians on the basis that he witnessed thousands of displaced persons in 1998 and that he received regular MUP reports throughout March to June 1999 that reported on the increasing numbers of Kosovo Albanians crossing the borders from Kosovo into Albania or FYROM. 2736 He also knew about the humanitarian situation as well as killings and other violent crimes against Kosovo Albanians through other sources, including the media.2737
926. Under these circumstances, the Appeals Chamber finds that it was foreseeable to Dorđević that crimes of a sexual nature might be committed. The Appeals Chamber recalls that thousands of Kosovo Albanian civilians were being forcibly displaced and mistreated on a massive scale by Serbian forces who could act with near impunity, and that women were frequently separated from the men and thereby rendered especially vulnerable. The Appeals Chamber, Judge Tuzmukhamedov dissenting, finds that in such environment, the possibility that sexual assaults might be committed was sufficiently substantial as to be foreseeable to Dorđević and that he willingly took the risk when he participated in the JCE. The Appeals Chamber, Judge Tuzmukhamedov dissenting, is further satisfied that, in light of his knowledge of the persecutory nature of the campaign, it was also foreseeable to Dorđević that such sexual assaults might be carried out with discriminatory intent."
2734 See Trial Judgement, para. 2158. See also Trial Judgement, paras 1999, 2128, 2130, 2154-2157, 2193; supra, Chapter XI.
2735 Trial Judgement, paras 2127-2128, 2130, 2135-2137, 2143, 2151-2152, 2158.
2736 Trial Judgement, paras 1903, 1990, 2178, 2182. See supra, paras 247-252, 489-492.
2737 Trial Judgement, paras 1996-1998, 2183. See supra, paras 497-501.
Zyklon B case: Trial of Bruno Tesch and two others, British Military Court, Hamburg, 1st-8th March 1946, Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume I, 1947, p. 101:
"Counsel said that it was unbelievable that Dr. Tesch did not know that anything wrong went on in the concentration camps. Dr. Drosihn had said without hesitation that he saw things there which were not worthy of human dignity, and that he had said so to Tesch. It was also unbelievable that Dr. Tesch had no knowledge of the amounts of gas being supplied to the S.S. and to Auschwitz in particular, by a firm which was wholly his property. In 1942 and 1943 Auschwitz had been the firms second largest customer. Dr. Tesch had no reason to believe that Auschwitz was a transit camp, and moreover he was too efficient a man to be duped by the S.S. Counsel completed his case against Tesch by casting doubt on his veracity by showing how contradictions existed between his statements and those of other witnesses on certain details unrelated to the main issue.
Counsel contended that all that Tesch knew must, from the nature of the inner organisation of the business, have also been known by Weinbacher. For 200 days in the year he was in sole control of the firm, with access to all the books, able to read the travel reports, indeed compelled to read the travel reports if he was to carry on the business properly during the periods when his principal was away.
[ ]
He concluded that, by supplying gas, knowing that it was to be used for murder, the three accused had made themselves accessories before the fact to that murder."
B. Evidentiary Comment
Although the extract from the Zyklon B Case above refers to the prosecutions closing address, it might be inferred from the guilty verdicts given to Tesch and Weinbacher, that it was found that they had knowledge the gas was to be used for the purpose of murder. The prosecution does not refer specifically to the accuseds knowledge of the intent of those who would use the gas for killing, and neither did the judge in his summing up (he explained that it was necessary for the prosecution to prove "that the accused knew that the gas was to be used for the purpose of killing human beings") this seems inextricable from the conclusion that they knew the gas was being used on large scale and over a long period of time for killing.
M.P.15. Evidence that the person had knowledge by virtue of a position of authority.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 110:
"110. The Trial Chamber noted that, by his own admission, Krnojelac was warden of the KP Dom from 18 April 1992 until the end of July 1993, that is for 15 months.148 It found that Krnojelac had voluntarily undertaken the position of acting warden and then warden until his departure from the KP Dom149 and that he retained all powers associated with the pre-conflict position of warden during that period.150 It was noted above that the Trial Chamber established that, by virtue of his position as prison warden, Krnojelac knew that the non-Serb detainees were being unlawfully detained, had admitted to knowing that they were being detained precisely because they were non-Serbs and knew that none of the procedures in place for legally detained persons was ever followed at the KP Dom. It was also established that he was aware of the intent of the principal offenders - the guards and military authorities - responsible for the living conditions imposed on the non-Serb detainees at the KP Dom, knew that beatings and acts of torture were being carried out and that, by failing to take any appropriate measures which, as warden, he was obliged to adopt, he encouraged his subordinates to maintain those conditions and furthered the commission of those acts."
"148. Ibid., para. 96.
149. Ibid., para. 99.
150. Ibid., para. 103. Moreover, the Trial Chamber concluded that Krnojelac had authority over all the subordinate personnel and detainees at the KP Dom and that, while he could exercise only limited control over the activity of the investigators and paramilitaries entering the camp, he was in a position to instruct the investigators to interview detainees of his choosing with a view to their exchange or release and to ensure that the paramilitaries did not remove detainees without the authorisation of their superiors (paras. 105 to 107)."
