M.3. The perpetrator’s contribution was intentional

M.3.1. The perpetrator meant to engage in the conduct;

M.3.2. The perpetrator meant to cause the consequence of crime; OR

M.3.3. The perpetrator was aware that the consequence will occur in the ordinary course of events

M.3.4. The perpetrator was aware of the circumstance of the crime

M.3. The perpetrator’s contribution was intentional

M.3.1. The perpetrator meant to engage in the conduct;

M.3.1.1. ICC

In the Katanga Trial Judgement, the Trial Chamber held that:

"Faithfulness to the text of the provision demands that the contribution necessary to establishing the mode of liability under article 25(3)(d) be "intentional", in addition to including one of the specific mental elements stipulated at paragraphs (i) and (ii). In construing this volitional element, the Chamber must therefore afford consideration to the two sub-paragraphs of article 25(3)(d): the meaning given to the intentionality of the contribution must not overlap with paragraph (i) or paragraph (ii) of the article, lest one or both paragraphs be rendered redundant. Accordingly, the Chamber sees the intentionality prescribed by article 25(3)(d) of the Statute as applying only to the conduct which constitutes the contribution and not to the activity, purpose or criminal intention mentioned at paragraphs (i) and (ii) of the article, respectively. In this regard, the Chamber takes the view that in accordance with the criterion which article 30(2)(a) lays down, the accused must intend to engage in the conduct - otherwise put, his or her actions must have been deliberate and made with awareness. It need not be proven, therefore, that the accused shared the group’s intention to commit the crime."[55]

M.3.1.2. ICTY

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that the mens rea required for liability under the first category of joint criminal enterprise is that the accused shares the intent with the other participants to carry out the crimes forming part of the common purpose."[1]

The Tadić Appeals Chamber held that:

"By contrast, the mens rea element differs according to the category of common design under consideration. With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). With regard to the second category (which, as noted above, is really a variant of the first), personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment. With regard to the third category, 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."[2]

The Stakić Appeals Chamber held that:

"The mens rea required for a finding of guilt differs according to the category of joint criminal enterprise liability under consideration. For first category, or ‘basic’ joint criminal enterprise liability, it must be shown that the accused and the other participants in the joint criminal enterprise intended that the crime at issue be committed. For second category joint criminal enterprise liability, it must be shown that an organised criminal system exists – as is the case with concentration or detention camps. The accused must be shown to have personal knowledge of the system and intent to further the criminal purpose of the system – the personal knowledge may be proven by direct evidence or by reasonable inference from the accused’s position of authority. The third or ‘extended’ category of joint criminal enterprise liability allows conviction of a participant in a joint criminal enterprise for certain crimes committed by other participants in the joint criminal enterprise even though those crimes were outside the common purpose of the enterprise. The accused can be found to have third category joint criminal enterprise liability if he or she intended to further the common purpose of the joint criminal enterprise and the crime was a natural and foreseeable consequence of that common purpose. In other words, liability attaches 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. The crime must be shown to have been foreseeable to the accused in particular."[3]

M.3.1.3. ICTR

Ntakirutimana and Ntakirutimana Appeals Chamber held that:

"The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment. Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common 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 which was part of the common design 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’ – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise"[4]

M.3.2. The perpetrator meant to cause the consequence of crime; OR

M.3.2.1. ICC

M.3.2.2. ICTY

The Tadić Appeals Chamber held that:

"By contrast, the mens rea element differs according to the category of common design under consideration. With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). With regard to the second category (which, as noted above, is really a variant of the first), personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment. With regard to the third category, 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."[5]

The Stakić Appeals Chamber held that:

"The mens rea required for a finding of guilt differs according to the category of joint criminal enterprise liability under consideration. For first category, or ‘basic’ joint criminal enterprise liability, it must be shown that the accused and the other participants in the joint criminal enterprise intended that the crime at issue be committed. For second category joint criminal enterprise liability, it must be shown that an organised criminal system exists – as is the case with concentration or detention camps. The accused must be shown to have personal knowledge of the system and intent to further the criminal purpose of the system – the personal knowledge may be proven by direct evidence or by reasonable inference from the accused’s position of authority. The third or ‘extended’ category of joint criminal enterprise liability allows conviction of a participant in a joint criminal enterprise for certain crimes committed by other participants in the joint criminal enterprise even though those crimes were outside the common purpose of the enterprise. The accused can be found to have third category joint criminal enterprise liability if he or she intended to further the common purpose of the joint criminal enterprise and the crime was a natural and foreseeable consequence of that common purpose. In other words, liability attaches 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. The crime must be shown to have been foreseeable to the accused in particular."[6]

M.3.2.3. ICTR

Ntakirutimana and Ntakirutimana Appeals Chamber held that:

"The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment. Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common 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 which was part of the common design 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’ – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise"[7]

M.3.3. The perpetrator was aware that the consequence will occur in the ordinary course of events

M.3.3.1. ICC

M.3.3.2. ICTY

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that, in Karemera et al., the ICTR Appeals Chamber had declined to review the Tadić Appeal Judgement in relation to the third category of joint criminal enterprise, confirming that "under the third - or ‘extended’ - category of JCE liability, the accused can be held responsible for crimes physically committed by other participants in the JCE when these crimes are foreseeable consequences of the JCE, even if the accused did not agree with other participants that these crimes would be committed".

"The Appeals Chamber recalls that under the third category of joint criminal enterprise, an accused may incur criminal responsibility for crimes committed by non-members of the joint criminal enterprise."

"In the case of crimes carried out by non-members of a joint criminal enterprise, it must be shown that one or more joint criminal enterprise members (in furtherance of the joint criminal enterprise) used the non-member to commit the actus reus of the crimes forming part of the common purpose. Should the non-members used by one or more members of the joint criminal enterprise commit crimes outside the common purpose, these crimes may also be imputed to members of the joint criminal enterprise, provided they were a natural and foreseeable consequence of the joint criminal enterprise. In such circumstances, the necessary link has been established and members of the joint criminal enterprise may incur liability, pursuant to the third category of joint criminal enterprise, for the perpetration of such extended crimes."[8]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that the third category of joint criminal enterprise entails responsibility for crimes committed beyond the common purpose but which are nevertheless a natural and foreseeable consequence of that common purpose. The Appeals Chamber further recalls that where the alleged foreseeable crime is a specific intent crime such as persecutions, it must be established that it was foreseeable to the accused that the crime might be committed, though it need not be shown that the accused possessed specific intent."[9]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that the mens rea standard for the third category of joint criminal enterprise liability does not require awareness of a "probability" that a crime would be committed. Rather, liability under the third category of joint criminal enterprise may attach where an accused is aware that the perpetration of a crime is a possible consequence of the implementation of the common purpose. However, the Appeals Chamber recalls that the "possibility standard": is not satisfied by implausibly remote scenarios. Plotted on a spectrum of likelihood, the JCE III mens rea standard does not require an understanding that a deviatory crime would probably be committed; it does, however, require that a crime could be committed is sufficiently substantial as to be foreseeable to an accused."[10]

The Tadić Appeals Chamber held that:

"By contrast, the mens rea element differs according to the category of common design under consideration. With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). With regard to the second category (which, as noted above, is really a variant of the first), personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment. With regard to the third category, 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."[11]

The Stakić Appeals Chamber held that:

"The mens rea required for a finding of guilt differs according to the category of joint criminal enterprise liability under consideration. For first category, or ‘basic’ joint criminal enterprise liability, it must be shown that the accused and the other participants in the joint criminal enterprise intended that the crime at issue be committed. For second category joint criminal enterprise liability, it must be shown that an organised criminal system exists – as is the case with concentration or detention camps. The accused must be shown to have personal knowledge of the system and intent to further the criminal purpose of the system – the personal knowledge may be proven by direct evidence or by reasonable inference from the accused’s position of authority. The third or ‘extended’ category of joint criminal enterprise liability allows conviction of a participant in a joint criminal enterprise for certain crimes committed by other participants in the joint criminal enterprise even though those crimes were outside the common purpose of the enterprise. The accused can be found to have third category joint criminal enterprise liability if he or she intended to further the common purpose of the joint criminal enterprise and the crime was a natural and foreseeable consequence of that common purpose. In other words, liability attaches 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. The crime must be shown to have been foreseeable to the accused in particular."[12]

M.3.3.3. ICTR

Ntakirutimana and Ntakirutimana Appeals Chamber held that:

"The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment. Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common 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 which was part of the common design 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’ – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise"[13]

M.3.4. The perpetrator was aware of the circumstance of the crime

M.3.4.1. ICC

M.3.4.2. ICTY

M.3.4.3. ICTR