The Prosecutor v. Radoslav Brdjanin - Case No. IT-99-36-A

“Decision on Interlocutory Appeal”

19 March 2004
Appeals Chamber (Judges Meron [Presiding], Shahabuddeen, Güney, El Mahdi and Weinberg de Roca)

Procedural Background

· On 28 November 2003, Trial Chamber I rendered its “Decision on Motion for Acquittal Pursuant to Rule 98 bis” (“Impugned Decision”) whereby it acquitted Radoslav Brdjanin of Count 1 of the Indictment (Genocide) in the context of the third category of joint criminal enterprise (“JCE III”).¹ It found that the specific intent required to establish the crime of genocide pursuant to Article 4 of the Statute² was incompatible with the lower mens rea standard of JCE III according to which the Prosecution is required to prove only awareness on the part of the Accused that the said crime would be committed by other members of the joint criminal enterprise.

· On 10 December 2003, following certification of the Trial Chamber³, the Prosecution filed its appeal from the Impugned Decision⁴, whereby it submitted that “(i) the Trial Chamber erred in law in concluding that the third category of joint criminal enterprise liability is ‘incompatible’ with the specific intent requirement of Genocide; and (ii) the Trial Chamber erred in law in dismissing a mode of liability at the Rule 98 bis stage of the proceedings”.

Decision

The Appeals Chamber allowed the Prosecution’s appeal, reversed the Impugned Decision to acquit Brdjanin of Count 1 of the Indictment (Genocide) with respect to the third category of joint criminal enterprise, and reinstated that count. Judge Shahabuddeen appended a separate opinion.

Reasoning

Joint criminal enterprise as a form of criminal liability

In the Milutinovic Decision, the Appeals Chamber found that joint criminal enterprise is not a separate offence in itself but a “mode of committing one of the offences prescribed by Articles 2 to 5 of the Statute”.⁵ In the Stakic Judgement, Trial Chamber II noted with reference to the mens rea of joint criminal enterprise that Article 7(1) lists “modes of liability only”, that “these cannot change or replace the elements of the crimes defined in the Statute”, and that in particular “the mens rea requirements for an offence listed in the Statute cannot be altered”.⁶

In the present Decision, the Appeals Chamber found that the “third category of joint criminal enterprise liability is, as with other forms of criminal liability, such as command responsibility or aiding and abetting, not an element of a particular crime” but a “mode of liability through which an accused may be individually responsible despite not being the direct perpetrator of the offence”.⁷

Criminal liability for crimes falling outside of the agreed crimes

The Appeals Chamber held that an “accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed ” and that “it is sufficient to prove that that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of the agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed”.⁸ In other words the Appeals Chamber found that “[p]rovided that the standard applicable to [JCE III], i.e. ‘ reasonably foreseeable and natural consequences’ is established, criminal liability can attach to an accused for any crime that falls outside of an agreed upon joint criminal enterprise”.⁹

In the present case, the Appeals Chamber found with respect to the crime of genocide that the Prosecution was required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent.¹⁰

Rule 98 bis standard of review

On the basis of Rule 98 bis, a Trial Chamber shall order the entry of acquittal on the motion of an accused or proprio motu if it finds that the evidence is “insufficient to sustain a conviction on that or those charges”. In the Jelisic Judgement, the Appeals Chamber set out the legal standard for such review. It held:

“[…] the Appeals Chamber follows its recent holding in the Delalic appeal judgement, where it said: ‘[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question’.¹¹ The capacity of the prosecution’s evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution’s evidence (if accepted ) but whether it could.”¹²

The Appeals Chamber, in the present case, acknowledged that “the purpose of Rule 98 bis proceedings is to test the sufficiency of the Prosecution’s evidence -in-chief” and added that “this purpose does not preclude the Trial Chamber from entertaining legal issues where determination of those issues at that time is of benefit to the parties and the efficiency of the proceedings”.¹³ Given that it upheld the first ground of appeal, it did not find it necessary to further discuss this second ground of appeal (dismissal of a mode of liability at the Rule 98 bis stage of the proceedings).

Separate Opinion of Judge Shahabuddeen

In his Separate Opinion, Judge Shahabuddeen, while supporting the conclusion reached by the Appeals Chamber, expressed it uneasiness about its finding, in paragraph 5, that an “accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed”. In his view, this wording suggests that “a case brought under the third category of joint criminal enterprise of Tadic may be a case in which intent is not shown and that nevertheless a conviction could be made”. In his interpretation, JCE III “does not dispense to prove intent” but “provides a mode of proving intent in particular circumstances, namely, by proof of foresight in those circumstances”. He found that JCE III “ does not, because it cannot, vary the elements of the crime; it is not directed to the elements of the crime; it leaves them untouched”.

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1. Brdjanin, IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98 bis, 28 November 2003. The third category of joint criminal enterprise concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the execution of that common purpose. On the three categories of joint criminal enterprise, see Tadic Appeals Judgement (Tadic, IT-94-1-A, Judgement, 15 July 1999), paras. 195-226. See also the summary of the Krnojelac Appeals Judgement (Krnojelac, IT-97-25-A, Judgement) and the box on joint criminal enterprise in Judicial Supplement No. 45.
2. Article 4(2) of the Statute (Genocide) reads : “2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.” (emphasis added).
3. The certification to appeal the Impugned Decision was given by the Trial Chamber on 3 December 2003 (Trial Transcripts 23122).
4. Brdjanin, IT-99-36-A, Prosecution’s Appeal from Trial Chamber’s Decision on Motion for Acquittal Pursuant to Rule 98 bis, 10 December 2003.
5. Milutinovic et al., IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 44, Judicial Supplement No. 41.
6. Stakic, IT-97-24-T, Judgement, 31 July 2003, para. 437, Judicial Supplement No. 43.
7. Para. 5.
8. Ibid. With regard to the mental element of JCE III, the Appeals Chamber stated in the Tadic Appeals Judgement, para. 228, that: “With regard to the third category [of joint criminal enterprise], what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk”. See also Krnojelac Appeals Judgement, para. 32.
9. Para. 9.
10. Para. 6.
11. Delalic et al., IT-96-21-A, Judgement, 20 February 2001, para. 434, Judicial Supplement No. 23.
12. Jelisic, IT-95-10-A, Judgement, 5 July 2001, para. 37, Judicial Supplement No. 26.
13. Para. 11.