Table of contents:
M.4.2.1. Evidence that the perpetrator had the intent to commit a certain crime.
M.P.23. Evidence that the perpetrator had the intent to commit a certain crime.
M.4.2.2. Evidence that the perpetrator intended to participate in a continuing crime.
M.P.26.1. Evidence that the perpetrator intended to participate in an act of genocide.
M.P.26.2. Evidence that the perpetrator intended to participate in an ethnic cleansing.
M.4.3. Intent or awareness was shared with other joint perpetrators.
M.P.28.1. Evidence of a shared intent to destroy an ethnic group
M.P.28.2. Evidence of a shared intent to commit torture.
Element:
The necessary intent of joint perpetration is the required mens rea of the offence itself. In Stakic, the Trial Chamber emphasised with regard to the mens rea of joint criminal enterprise that modes of liability listed in Article 7(1) of the Statute can not change or replace elements of crimes defined in the Statute: "In particular, the mens rea elements required for an offence listed in the Statute can not be altered" (Stakic Trial judgment, para. 437).
The ICTY has held that the standard of proof of intent is high. If the intent of the suspect is to be proved by inference, this inference "must be the only reasonable inference available from the evidence". (Brdjanin, Trial judgment, para. 354). In Krnojelac, the tribunal rejected the Prosecutions argument that "the Accused was affiliated with the SDS and supported Serb nationalistic policies, which (it is alleged) provides direct evidence of his conscious intention to discriminate. The Trial Chamber is not satisfied that the evidence is sufficient to establish these allegations" (Krnojelac, Trial judgment, para. 487).
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 496:
"496. The Trial Chamber is convinced that Dr. Stakic and his co-perpetrators acted in the awareness that crimes would occur as a direct consequence of their pursuit of the common goal. The co-perpetrators consented to the removal of Muslims from Prijedor by whatever means necessary and either accepted the consequence that crimes would occur or actively participated in their commission. The fact that Dr. Stakic felt it necessary to replace Professor Cehajic and others who clearly would not have participated in the implementation of the common goal demonstrates Dr. Stakics awareness that without his acts and the acts of the other co-perpetrators, the ultimate goal of the creation of a Serbian state could not be realised."
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 496:
"496. The Trial Chamber is convinced that Dr. Stakic and his co-perpetrators acted in the awareness that crimes would occur as a direct consequence of their pursuit of the common goal. The co-perpetrators consented to the removal of Muslims from Prijedor by whatever means necessary and either accepted the consequence that crimes would occur or actively participated in their commission. The fact that Dr. Stakic felt it necessary to replace Professor Cehajic and others who clearly would not have participated in the implementation of the common goal demonstrates Dr. Stakics awareness that without his acts and the acts of the other co-perpetrators, the ultimate goal of the creation of a Serbian state could not be realised."
M.4.2.1. Evidence that the perpetrator had the intent to commit a certain crime.
M.P.23. Evidence that the perpetrator had the intent to commit a certain crime.
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 436:
"436. The basic category of joint criminal enterprise requires proof that the accused shared the intent specifically necessary for the concrete offence, and voluntarily participated in that enterprise."
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 68:
"68. The Prosecution must also 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.134 Where the Prosecution relies upon proof of state of mind by inference, that inference must be the only reasonable inference available on the evidence.135"
"134 Krnojelac Trial Judgment, par 83; Brdanin and Talic Decision on Form of Further Amended Indictment, par 26.
135 Krnojelac Trial Judgment, par 83."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 83:
"83. To prove the basic form of joint criminal enterprise, the Prosecution must demonstrate that each of the persons charged and (if not one of those charged) the principal offender or offenders had a common state of mind, that which is required for that crime.237 [ ]."
"237 Brdanin and Talic Decision on Form of Further Amended Indictment, par 26."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, paras. 118, 267:
"118. [ ]It further stated that, to 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)".163 It then concluded that, to 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".164
"163 Ibid., para. 252 (original emphasis).
164 Ibid., para. 257."
"267. The intention of the accused, as detailed above, was to obtain information from Witness A by causing her severe physical and mental suffering. In relation to Witness D, the accused intended to extract information about his alleged betrayal of the HVO to the ABiH and his assistance to Witness A and her children."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 228:
"228. [ ]With regard to the first category, what is required is the intent to perpetrate a certain crime [ ]."
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 264:
"264. [ ]To establish responsibility under the first category of JCE, it needs to be shown that the accused (i)voluntarily participated in one of the aspects of the common plan, and (ii) intended the criminal result, even if not physically perpetrating the crime"701
"701 Tadić Appeal Judgement , para. 196."
"288. On the basis of the evidence as to
a Trial Chamber could infer that he not only knew of the genocidal plan of the joint criminal enterprise, but also that he shared with its members the intent to destroy a part of the Bosnian Muslims as a group in that part of the territory of Bosnia and Herzegovina which it was planned to include in the Serbian state."
"753 See supra, at para. 276.
754. See supra, at para. 285."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 196:
"196. 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 (and even if each co-perpetrator carries out a different role within it), they nevertheless all possess the intent to kill. The objective and subjective prerequisites for imputing criminal responsibility to a participant who did not, or cannot be proven to have, effected the killing are as follows: (i) the accused must voluntarily participate in one aspect of the common design (for instance, by inflicting non-fatal violence upon the victim, or by providing material assistance to or facilitating the activities of his co-perpetrators); and (ii) the accused, even if not personally effecting the killing, must nevertheless intend this result."
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003 , para. 100:
"100. The Appeals Chamber agrees with the Prosecution that shared criminal intent does not require the co-perpetrators personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise."132
"132 Prosecution Brief, para. 2.38."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 633:
"633. The Trial Chamber concludes beyond reasonable doubt that General Krstic participated in a joint criminal enterprise to kill the Bosnian Muslim military-aged men from Srebrenica from the evening of 13 July onward. General Krstic may not have devised the killing plan, or participated in the initial decision to escalate the objective of the criminal enterprise from forcible transfer to destruction of Srebrenicas Bosnian Muslim military-aged male community, but there can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men. This cannot be gainsaid given his informed participation in the executions through the use of Drina Corps assets."
B. Evidentiary comment:
It may be interesting to note the opinion of the tribunal in Stakic, which held that: "the accused must be aware that his own role is essential for the achievement of the common goal" (Stakic Trial Judgment, ICTY, para. 442). This knowledge requirement has not been imposed or even arisen in any other case. Further, the use of the word "essential" creates uncertainty, since the jurisprudence always refered to a contribution being "significant", as opposed to "essential".
M.4.2.2. Evidence that the perpetrator intended to participate in a continuing crime.
M.P.26.1. Evidence that the perpetrator intended to participate in an act of genocide.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 633:
"633. The Trial Chamber concludes beyond reasonable doubt that General Krstic participated in a joint criminal enterprise to kill the Bosnian Muslim military-aged men from Srebrenica from the evening of 13 July onward. General Krstic may not have devised the killing plan, or participated in the initial decision to escalate the objective of the criminal enterprise from forcible transfer to destruction of Srebrenicas Bosnian Muslim military-aged male community, but there can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men. This cannot be gainsaid given his informed participation in the executions through the use of Drina Corps assets."
M.P.26.2. Evidence that the perpetrator intended to participate in an ethnic cleansing.
A. Legal source/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 780-783:
"780. On the basis of his participation in the events from October 1992 until 16 April 1993, as outlined above, the Trial Chamber finds that the accused attacked his Muslim neighbours solely due to their ethnicity and with the aim of cleansing the village of any Muslim inhabitants.
781. The accused, together with his brother Mirjan, in a gross and blatant manner denied his Muslim fellow citizens their fundamental rights to life, freedom of movement and free enjoyment of their family life and property, all against the background of numerous killings, woundings etc. committed by the HVO and the Military Police . His actions and their consequences are of such a heinous nature that there can be no dispute that they match in gravity the other offences commonly included under Article 5 of the Statute. The civilian character of the victims cannot seriously be called into question.
782. The accused acted as a co-perpetrator, together with his brother Mirjan Kupre skic, within the meaning of Article 7(1) of the Statute, because he adhered to a common plan for the execution of the cleansing campaign in the village, which by necessity was a highly coordinated effort and required full prior knowledge of the intended activities and subordination to a common plan of action.
"783. There can be no doubt on the basis of the circumstances proven that the accused was aware of the wider background to the attack mentioned above, especially with respect to the connection with the beginning of a large-scale armed conflict against the BiH, and that the main if not sole motivation for his participation was the forced expulsion of Muslims from the Lasva River Valley region, thus displaying a clear discriminatory intent. From this it follows that the accused was aware that he would not engage in a battle between military units, but would be attacking helpless and unprepared civilians."
M.4.3. Intent or awareness was shared with other joint perpetrators.
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 436:
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 64:
"126 Tadić Appeal Judgment, par 190-206; Delalic Appeal Judgment, pars 365-366.
127 Krnojelac Trial Judgment, par 78; Brdjanin and Talic Decision on Form of Further Amended Indictment, par 26.
128 Krnojelac Trial Judgment, par 78."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 83:
"237 Brdanin and Talic Decision on Form of Further Amended Indictment, par 26."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 228:
A. Legal source/authority and evidence:
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 68:
"68. The Prosecution must also 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.134 Where the Prosecution relies upon proof of state of mind by inference, that inference must be the only reasonable inference available on the evidence.135"
"134 Krnojelac Trial Judgment, par 83; Brdanin and Talic Decision on Form of Further Amended Indictment, par 26.
135 Krnojelac Trial Judgment, par 83."
M.P.28.1. Evidence of a shared intent to destroy an ethnic group
A. Legal source/authority and evidence:
Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, paras. 196-197:
"196. A number of other facts established by the Trial Chamber, when considered together, further support the inference that Ndahimana shared the intent to further the common criminal purpose to exterminate the Tutsis of Kivumu Commune to destroy them as a group, specifically: (i) Ndahimanas repeated meetings with members of the JCE on 11, 13, 14, 15, and 16 April 1994; (ii) his attendance at the 16 April meeting where the decision to destroy the church was made; (iii) the fact that he must have known that he would be perceived as an approving spectator; (iv) his presence during the killings while having reason to know that it would encourage the assailants; (v) his failure to object to the killings on 16 April 1994; (vi) his failure to punish his subordinates from the communal police for their participation in the 15 April killings; and (vii) his promotion of Niyitegeka to the post of deputy brigadier on 29 April 1994 while knowing that he participated in the 15 April killings.519
197. [ ] In light of the evidence discussed in the two preceding paragraphs, the Appeals Chamber fails to see any conclusion that could reasonably be reached from the totality of the evidence, other than that Ndahimana shared the requisite specific intent of the other JCE members. Based on the evidence on the record, the Appeals Chamber considers that Ndahimana did not merely act with the knowledge that his acts would assist in the killings of the Tutsi refugees, but also with the intent to exterminate the Tutsis of Kivumu Commune to destroy them as a group. Accordingly, the Appeals Chamber sets aside the Trial Chambers finding that Ndahimana did not share the intent to further the JCE common purpose to exterminate the Tutsis of Kivumu Commune with the specific intent to destroy them as a group and finds that he possessed such intent."
519 Trial Judgement, paras. 9, 11, 13, 14, 17, 18, 104, 136, 282, 293, 297, 673, 710, 746, 750, 753, 754, 788, 806, 813, participation of communal policemen in the 16 April killings was not established. See Trial Judgement, para. 759. See also infra, Section V.D. The Appeals Chamber also notes that the Prosecution fails to establish that Abayisenga, whom Ndahimana promoted to brigadier on 29 April 1994, participated in the 15 April killings. The Appeals Chamber notes that the Trial Chamber only refers to Witness CNJ as alleging that Abayisenga was involved in these killings. See Trial Judgement, fn. 1402. The Trial Chamber specified that it may rely on Witness CNJ evidence on these events only where corroborated. See ibid., para. 458.824-832, fn. 1402. See supra, Section IV.A. The Appeals Chamber recalls that the Trial Chamber found that the participation of communal policemen in the 16 April killings was not established. See Trial Judgement, para. 759. See also infra, Section V.D. The Appeals Chamber also notes that the Prosecution fails to establish that Abayisenga, whom Ndahimana promoted to brigadier on 29 April 1994, participated in the 15 April killings. The Appeals Chamber notes that the Trial Chamber only refers to Witness CNJ as alleging that Abayisenga was involved in these killings. See Trial Judgement, fn. 1402. The Trial Chamber specified that it may rely on Witness CNJ’s evidence on these events only where corroborated. See ibid., para. 458.
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 302:
302. The Chamber considers that there is sufficient evidence to establish substantial grounds to believe that between 30 December 2006 and 22 December 2007, a criminal plan was developed and set in place by Mr. Ruto and other members of the organisation (the Network) with the purpose of evicting members of the Kikuyu, Kisii, and Kamba communities in particular because they were perceived as PNU supporters. Mr. Ruto hosted a series of meetings, some at his house in Sugoi, where other high-ranking members of the organisation, including politicians, businessmen and former police and military officials, were present.
"288. On the basis of the evidence as to
a Trial Chamber could infer that he not only knew of the genocidal plan of the joint criminal enterprise, but also that he shared with its members the intent to destroy a part of the Bosnian Muslims as a group in that part of the territory of Bosnia and Herzegovina which it was planned to include in the Serbian state."
"753 See supra, at para. 276.
754 See supra, at para. 285."
M.P.28.2. Evidence of a shared intent to commit torture.
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, para. 120:
"120. There is no dispute that the Appellant sought certain information from Witness A in the events relevant to this case. There is also no dispute that the various physical attacks in the Large Room and in the Pantry were not committed by the Appellant, but by Accused B. According to the Trial Chamber's factual findings,166 the Appellant was present both in the Large Room and the Pantry interrogating Witness A while the offences charged in the Amended Indictment took place. The Appeals Chamber agrees with the Prosecutor's submission that the events in this case should not be artificially divided between the Large Room and the Pantry, as the process was a continuum and should be assessed in its entirety. Once the abuses started and continued successively in two rooms, the interrogation did not cease. There was no need for evidence proving the existence of a prior agreement between the Appellant and Accused B to divide the interrogation into the questioning by the Appellant and physical abuse by Accused B. The way the events in this case developed precludes any reasonable doubt that the Appellant and Accused B knew what they were doing to Witness A and for what purpose they were treating her in that manner; that they had a common purpose may be readily inferred from all the circumstances, including (1) the interrogation of Witness A by the Appellant in both the Large Room while she was in a state of nudity, and the Pantry where she was sexually assaulted in the Appellant's presence; and (2) the acts of sexual assault committed by Accused B on Witness A in both rooms, as charged in the Amended Indictment. Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable."
"166 Judgement, paras. 124-130."
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 472, 496:
"472. On 29 April 1992, both at the meeting convened by Dr. Stakic at Prijedor JNA barracks and at the gathering in Cirkin Polje, the final agreement was made amongst those willing to participate, in particular the police and armed Serbs, that power would be taken over in Prijedor municipality during the night. This was the trigger and the first in a series of agreements necessary to achieve the common goal. No formal agreement was necessary and all participants were aware of where the decision to take over power would lead."
"496. The Trial Chamber is convinced that Dr. Stakic and his co-perpetrators acted in the awareness that crimes would occur as a direct consequence of their pursuit of the common goal. The co-perpetrators consented to the removal of Muslims from Prijedor by whatever means necessary and either accepted the consequence that crimes would occur or actively participated in their commission. The fact that Dr. Stakic felt it necessary to replace Professor Cehajic and others who clearly would not have participated in the implementation of the common goal demonstrates Dr. Stakics awareness that without his acts and the acts of the other co-perpetrators, the ultimate goal of the creation of a Serbian state could not be realised."
