M.5. The contribution was made in the knowledge of the intention of the group to commit the crime.

M.5. The contribution was made in the knowledge of the intention of the group to commit the crime

M.5.1. ICC

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

"The Chamber underlines that as regards this constituent element, the Statute proposes an alternative: the contribution must "be made with the aim of furthering the criminal activity or criminal purpose of the group" or "be made in the knowledge of the intention of the group to commit the crime". It further recalls that, in the case at bar, it decided to rely on the second alternative provided for by article 25(3)(d)(ii).

The Chamber underlines its holding that the group of persons acting with a common purpose must have harboured the intention to commit the crime; such interpretation references article 30(2)(b) of the Statute. In its view, and as put by article 30, "in relation to the consequence" which constitutes the crime, the group must "mean to cause that consequence" or know that the crime "will occur in the ordinary course of events". The Chamber takes the view that the accused’s knowledge of the intention of the group must be defined with reference to article 30(3) of the Statute: the accused must be aware that the intention existed when engaging in the conduct which constituted his or her contribution.

Knowledge of such circumstance must be established for each specific crime and knowledge of a general criminal intention will not suffice to prove, as article 25(3)(d)(ii) mandates, that the accused knew of the group’s intention to commit each of the crimes forming part of the common purpose. To incur liability as an accessory, the accused’s knowledge must be inferred from the relevant facts and circumstances and be connected to the group’s intention, as defined in article 30(2)(b) of the Statute, to commit the specific crimes."[56]

M.5.2. ICTY

The Tadić Appeals Chamber held that:

"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."[1]

The Kvocka et al. Appeals Chamber held that:

"Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator."[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.5.3. ICTR

The Simba Trial Chamber held that:

"The required mens rea for each form of joint criminal enterprise varies. The basic form of joint criminal enterprise requires the intent to perpetrate a certain crime, this intent being shared by all co-perpetrators. Where the underlying crime requires a special intent, such as discriminatory intent, the accused, as a member of the joint criminal enterprise, must share the special intent."[4]

The Mpambara Trial Chamber held that:

"A co-perpetrator (a term used to refer to a participant in a joint criminal enterprise) must intend by his acts to effect the common criminal purpose. Mere knowledge of the criminal purpose of others is not enough: the accused must intend that his or her acts will lead to the criminal result. The mens rea is, in this sense, no different than if the accused committed the crime alone."[5]