"Decision on Form of Second Amended Indictment"

11 May 2000
Trial Chamber II (Judges Hunt [Presiding], Mumba and Liu)

Procedural Background

The Prosecution charged Milorad Krnojelac with crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war. Trial Chamber II had already rendered two Decisions on the form of the previous indictments in the same case (Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 and Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000).

Pursuant to Article 7(1) of the Statute1, the Trial Chamber in both these Decisions distinguished between the accused’s individual "personal" responsibility and his responsibility for "aiding and abetting".

In its second amended indictment filed on 3 March 2000, the Prosecution argued a "common purpose" case as well as the "common plan" in whose execution the accused is alleged to have participated or aided and abetted.
Pursuant to Rule 72 of the Rules of Procedure and Evidence2, Milorad Krnojelac filed a Preliminary Motion in which he argued inter alia that the form in which the indictment had been pleaded was not precise enough. The accused raised an issue about the true nature of the "common purpose" case3. Trial Chamber II considered the Decision of the Appeals Chamber in Prosecutor v. Tadic4, which referred inter alia to the notion of joint criminal enterprise5.

The Decision

Trial Chamber II rejected the entire Motion filed by Milorad Krnojelac.

The Reasoning

In the view of the Judges, the Prosecution must rely on the "common purpose" case only when it is unable to establish beyond a reasonable doubt that the accused was the person who personally committed the offence charged. In the present case, the Trial Chamber inferred from the circumstances under which the Prosecution pleaded the common purpose case that it could not establish beyond a reasonable doubt that Milorad Krnojelac had personally committed the offence charged and that it had relied merely on the inferences available from "the nature of the accused’s authority"6.

In the view of the Judges, the law states that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Prosecution must establish (1) the existence of the joint criminal enterprise and (2) the participation therein by the accused.

• Trial Chamber II considered that a joint criminal enterprise exists where there is an understanding or arrangement amounting to an agreement between two or more persons to commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons participate together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement reached between them then and there to commit the crime.

• The Trial Chamber further ruled that a person participates in a joint criminal enterprise either:

(i) by participating directly in the commission of the agreed crime itself (as a co-perpetrator); or
(ii) by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime7; or
(iii) by acting in furtherance of a particular system in which the crime is committed by reason of the accused’s position of authority of function, and with knowledge of the nature of that system and the intent to further that system8.

The Trial Chamber also held that if the agreed crime is committed by one or the other of the participants in the joint criminal enterprise, all of the participants in the enterprise are equally guilty of the crime regardless of the part played by each in its commission.

Most importantly, Trial Chamber II ruled that, in order for the accused to understand the nature of the case brought against him by the Prosecution, in the indictment, the Prosecutor must state:

"(a) the nature or purpose of the joint criminal enterprise (or its "essence", as the accused here has suggested),
(b) the time at which or the period over which the enterprise is said to have existed,
(c) the identity of those engaged in the enterprise - so far as their identity is known, but at least by reference to their category as a group, and
(d) the nature of the participation by the accused in that enterprise".

Where any of these matters is to be established by inference, the Prosecution must identify in the indictment the facts and circumstances from which it seeks to draw the inference.

As a consequence, the Trial Chamber considered that where the Prosecution pleads a case in which the accused is alleged to have shared a common purpose with others as part of a joint criminal enterprise to commit a particular crime, it must include the above elements in the indictment.

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1. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime".
2. "(A) Preliminary motions, being motions which
(i) challenge jurisdiction;
(ii) allege defects in the form of the indictment;
(iii) seek the severance of counts joined in one indictment under Rule 49 or seek separate trials under Rule 82(B); or
(iv) raise objections based on the refusal of a request for assignment of counsel made under Rule 45(C)
shall be in writing and be brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i) and shall be disposed of not later than sixty days after they were filed and before the commencement of the opening statements provided for in Rule 84".
3. One interpretation of Article 7(1) of the Statute is that a person who committed a crime is the author or perpetrator, whereas a person who "planned" or "instigated" or "ordered" a crime is a co-author or co-perpetrator of the crime, and that a person who otherwise aided and abetted in the planning, preparation or execution of a crime, with knowledge that his or her acts would assist the perpetrator or author, is an aider and abettor or accomplice. A person who participates in a crime with intent may also be a co-perpetrator under the "common criminal purpose" doctrine. This classification and scheme were adhered to and applied, inter alia, in the Furundzija Judgement, Case No. IT-95-17/1-T, 10 December 1998 (see the Judicial Supplement No. 1), and in the Delalic et al. (Celebici) Judgement, Case No. IT-96-21-T, 16 November 1998 (see the Judicial Supplement No. 1), para. 326. See also the previous Decision in the same case, The Prosecutor v. Milorad Krnojelac, Case No. IT-95-25-PT, Trial Chamber II, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (summarised and analysed in Judicial Supplement No. 12), in which the Trial Chamber distinguished the three types of responsibility (superior, aiding and abetting and personal) and the precision required in relation to the material facts relating to the acts (identity of the victim, place and approximate date of the acts and means by which the offence was committed).
4. The Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber, Conviction Judgement, 15 July 1999 (see Judicial Supplement No. 6), para. 203, in which the Appeals Chamber, when referring to the "concentration camp" cases, ruled that "[…] The accused, when they were found guilty, were regarded as co-perpetrators of the crimes of ill-treatment, because of their objective "position of authority" within the concentration camp system and because they had "the power to look after the inmates and make their life satisfactory" (Belsen case, UNWCC, volume II, page 121) but failed to do so. It would seem that in these cases the required actus reus was the active participation in the enforcement of a system of repression, as it could be inferred from the position of authority and the specific functions held by each accused. The mens rea element comprised: (i) knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat inmates. It is important to note that, in these cases, the requisite intent could also be inferred from the position of authority held by the camp personnel. Indeed, it was scarcely necessary to prove intent where the individual’s high rank or authority would have, in and of itself, indicated an awareness of the common design and an intent to participate therein. All those convicted were found guilty of the war crime of ill-treatment, although of course the penalty varied according to the degree of participation of each accused in the commission of the war crime".
5. Ibidem, para. 220.
6. Ibidem.
7.The presence of that person when the crime is committed and a readiness to give aid if required are sufficient to amount encouragement of the other participant in the joint criminal enterprise to commit the crime. This is really tantamount to aiding and abetting as an accessory.
8. See The Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber, Conviction Judgement, 15 July 1999, para. 203.