M.3. The perpetrator fulfilled the subjective elements of the crime charged.(In addition to M.2.1. requirement, requirements of M.2.2. and M.2.3. as well M.2.4. will be applicable as defined in mental elements of each specific crime.)

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

M.3.2. The perpetrator meant to cause the consequence; 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 fulfilled the subjective elements of the crime charged.(In addition to M.2.1. requirement, requirements of M.2.2. and M.2.3. as well M.2.4. will be applicable as defined in mental elements of each specific crime.)

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

With regard to the first type of JCE, the Tadić Appeals Chamber held that:

"[I]n cases of co-perpetration, [a showing is required that] all participants in the common design possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, with intent)."[1]

In Stakić, the Trial Chamber argued with regard to the first type of JCE that:

"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."[2]

With regard to the first type of JCE, it was stated by the Krnojelac Appeals Chamber that:

"The Appeals Chamber finds that, apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent."[3]

With regard to the first type of JCE, the Trial Chamber in Simić, Tadić and Zarić Trial reasoned that:

"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."[4]

With regard to the first type of JCE, the Vasiljević Trial Chamber claimed that:

"Where the Prosecution relies upon proof of state of mind by inference, that inference must be the only reasonable inference available on the evidence."If the Trial Chamber is not satisfied that the Prosecution has proved that the Accused shared the state of mind required for the commission of any of the crimes in which he is alleged to have participated pursuant to a joint criminal enterprise, it may then consider whether it has nevertheless been proved that the Accused incurred criminal responsibility for any of those crimes as an aider and abettor to their commission."[5]

The Appeals Chamber affirmed that:

"The Appeals Chamber agrees with the test adopted by the Trial Chamber according to which, when the Prosecution relies upon proof of the state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence."[6]

"The Appeals Chamber considers that when a Chamber is confronted with the task of determining whether it can infer from the acts of an accused that he or she shared the intent to commit a crime, special attention must be paid to whether these acts are ambiguous, allowing for several reasonable inferences."[7]

"The Appeals Chamber is satisfied that no reasonable tribunal could have found that the only reasonable inference available on the evidence […] is that the Appellant had the intent to kill the seven Muslim men. The Trial Chamber found that the Appellant assisted Milan Lukic and his men by preventing the seven Muslim men from fleeing. It did not find, however, that the Appellant shot at the Muslim men himself, nor that he exercised control over the firing. Compared to the involvement of Milan Lukic and potentially one or both of the other men, the participation of the Appellant in the overall course of the killings did not reach the same level. The above-mentioned acts of the Appellant were ambiguous as to whether or not the Appellant intended that the seven Muslim men be killed. This conclusion is further supported by the relatively short period of time between the change of attitude of Milan Lukic and the shooting, the strong personality of Milan Lukic compared to the Appellant, as well as the factors mentioned in paragraph 130. The Appeals Chamber, therefore, concludes that the Trial Chamber erred by finding that the only reasonable inference from the evidence was that the Appellant shared the intent to kill the seven Muslim men."The error made by the Trial Chamber led to a miscarriage of justice since, without the proof the Appellant’s intent, the Appellant would not be responsible as a co-perpetrator in the joint criminal enterprise."[8]

In Vasiljević, the Appeals Chamber stated with regard to the first type of JCE that:

"With regard to the basic form of joint criminal enterprise what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators)."[9]

In Brdjanin, the Trial Chamber stated with regard to the first type of JCE that:

"The first category of JCE [joint criminal enterprise] requires that all participants in the JCE share the same criminal intent."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."[10]

"The Trial Chamber accepts that, while a JCE [joint criminal enterprise] may have a number of different criminal objects, it is not necessary for the Prosecution to establish that every participant agreed to every one of the crimes committed. However, it is necessary for the Prosecution to prove that, between the member of the JCE physically committing the material crime charged and the person held responsible under the JCE for that crime, there was a common plan to commit at least that particular crime."[11]

With regard to the first type of JCE, The Trial Chamber in Limaj et al. held that:

"In the first type of joint criminal enterprise the accused intends to perpetrate a crime and this intent is shared by all co-perpetrators."[12]

In Martić, the Trial Chamber reasoned with regard to the first type of JCE that:

"For the first form of JCE, it is also required that the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission."[13]

In reference to the second type of joint criminal enterprise (JCE), the Tadić Appeals Chamber stated that:

"[I]n the so-called ‘concentration camp’ cases, […] the requisite mens rea comprises knowledge of the nature of the system of ill-treatment and intent to further the common design of ill-treatment."[14]

Similarly, in Limaj, the Appeals Chamber held that for the second type of JCE:

"The mens rea of a systemic joint criminal enterprise requires proof of the participant’s personal knowledge of the system of ill-treatment, as well as the intent to further this system of ill-treatment."[15]

Moreover, the Tadić Appeals Chamber reasoned that for the second type of JCE:

"Such intent may be proved either directly or as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy."[16]

With regards to the second type of JCE, the Trial Chamber in Bosanski Šamac stated that it:

"does not consider it necessary to make a finding on when the common plan at first was conceived, but instead infers the common plan from all the circumstances. There is sufficient evidence to conclude that participants in the joint criminal enterprise acted in unison to execute a plan that included the forcible takeover of the town of Bosanski Šamac, taking over of vital facilities and institutions in the town, and persecuting non-Serb civilians in the Municipality of Bosanski Šamac, within the period set forth in the Amended Indictment."[17]

In Vasiljević, the Appeals Chamber claimed that:

"With regard to the [second,] systemic form of joint criminal enterprise (which, as noted above, is a variant of the first [form of joint criminal enterprise]), 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 system of illtreatment."[18]

It was argued by the Appeals Chamber in Kvočka et al. in reference to the second type of JCE that:

"Each of the Appellants suggests that he lacked the necessary intent to further the joint criminal enterprise, and that he was merely doing his job. The Prosecution responds that the shared criminal intent to further the joint criminal enterprise ‘implies neither personal enthusiasm nor satisfaction, nor personal initiative in performing the relevant contribution to the common criminal design.’ The Prosecution emphasizes that the motives of the accused are immaterial for the purposes of assessing that accused’s intent and criminal responsibility."The Appeals Chamber agrees with the Prosecution and notes that it has repeatedly confirmed the distinction between intent and motive: The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadić appeal judgement the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law.’ Shared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise. Therefore, the Appellants’ argument in this regard is rejected."The Appeals Chamber considers therefore that Kvočka’s submission that he was simply carrying out his duties in accordance with the police requirements is without merit. Incidentally, it does not appear that maintaining a camp which seeks to subjugate and persecute detainees based on their ethnicity, nationality or political persuasion and in which living conditions are intolerable and the most serious beatings are regularly meted out can possibly be considered as performing ‘duties in accordance with the police requirements’."[19]

"The Appeals Chamber considers that, even though Kvočka may have participated in the joint criminal enterprise, without being aware at the outset of its criminal nature, the facts of the case prove that he could not have failed to become aware of it later on. The harsh detention conditions, the continuous nature of the beatings of the non-Serb detainees and the widespread nature of the system of ill-treatment could not go unnoticed by someone working in the camp for more than a few hours, and in particular by someone in a position of authority such as that held by Kvočka. Kvočka’s submission that he was not aware of the criminal nature of the system in place at the camp is bound to fail."[20]

"The Appeals Chamber recalls that the level of an individual’s contribution to the joint criminal enterprise is a relevant factor in determining whether he has the requisite mens rea of a co-perpetrator."In this instance, the Trial Chamber balanced Kvočka’s infrequent intervention to improve the situation of certain detainees, family members or others, and to prevent crimes from being committed with the considerable role he played in maintaining the functioning of the camp despite knowledge that it was a criminal endeavour. The Appeals Chamber finds that Kvočka does not demonstrate how his infrequent intervention to assist the detainees is per se inconsistent with the Trial Chamber’s finding that he shared the intent to further the common criminal purpose."[21]

"The fact that Kvočka was thought to be a traitor by some of his superiors and colleagues could tend to show that Kvočka lacked enthusiasm in executing his duties in the camp, but such lack of enthusiasm, though relevant to motives, would not affect his intent to further the joint criminal enterprise."[22]

Similarly, in Krnojelac, the Appeals Chamber held that for the second type of JCE:

"[S]hared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise."[23]

"It is the Appeals Chamber’s belief that this distinction between intent and motive must also be applied to the […] crimes laid down in the Statute."[24]

Furthermore, the Kvočka et al. Appeals Chamber stated:

"The Appeals Chamber agrees with the Trial Chamber’s argument that, given the absence of direct evidence, intent may be inferred from the circumstances, for example, from the accused’s authority in the camp or the hierarchical system. The Trial Chamber also rightly stated that an intent to further the efforts of the [second form of] joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation in the functioning of the camp. The threshold from which an accused may be found to possess intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration depends in the final analysis mainly on the circumstances of the case."[25]

"With regard to knowledge of this specific crime, the Appeals Chamber concurs with the finding of the Trial Chamber that a participant in a joint criminal enterprise would not need to know of each crime committed in order to be criminally liable. Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently is enough in this regard."[26]

"Turning to Kvočka’s argument that he neither wanted nor contributed to the infliction of severe pain or suffering, the Appeals Chamber has already determined that, in contributing to the daily operation and maintenance of the Omarska camp, Kvočka allowed the perpetuation of the system of ill-treatment, thereby furthering the common criminal purpose. As such, Kvočka contributed to the perpetration of the crimes committed when he was employed in the camp, including the crimes of torture. Further, the Trial Chamber correctly established that Kvočka knew the common criminal purpose of the Omarska camp and intended to participate in it, which encompassed the perpetration of the crimes. Therefore, Kvočka’s argument that he should not be found responsible since he had not wanted or contributed to the severe physical pain and psychological suffering of Witness AK, Asef Kapetanovic, Witness AJ and Emir Beganovic is rejected."[27]

"The Appeals Chamber notes that Radic acknowledges that he was aware of the crimes committed in the camp. His argument, that he worked in the camp because of his orders and fear of the consequences of disobeying them, confounds intent and motives. As long as he participated in the functioning of the camp knowingly and willingly, his motives for doing so are irrelevant to the finding of his guilt."[28]

In Bosanski Šamac, the Appeals Chamber distinguished co-perpetration from joint criminal enterprise:

"The principal difference arises from the element of control in co-perpetratorship. That element is missing from JCE. Thus, while in most cases the same result is produced, a position can be reached in which there could be guilt under JCE but innocence under co-perpetratorship. But, in this case, it is not said that, if JCE applies, a result is reached that is different from that yielded by co-perpetratorship; Judge Lindholm himself shows that there is no difference in result."[29]

In Limaj et al., the Trial Chamber argued that:

"In the second type, embracing the so-called ‘concentration camp’ cases, or systemic [joint criminal enterprise], the accused has knowledge of the nature of a system of repression, in the enforcement of which he participates, and the intent to further the common concerted design to ill-treat the inmates of a concentration camp."[30]

The Kvočka et al. Appeals Chamber reasoned:

"The Appeals Chamber affirms the Trial Chamber’s conclusion that participants in a basic or systemic form of joint criminal enterprise must be shown to share the required intent of the principal perpetrators."[31]

However, see the Krnojelac Appeals Chamber:

"The Appeals Chamber finds that, apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise (footnote omitted) presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent."[32]

The Limaj et al. Trial Chamber stated that:

"In such [second type of joint criminal enterprise] cases the requisite intent may […] be able to be inferred from proved knowledge of the crimes being perpetrated in the camp and continued participation in the functioning of the camp, as well as from the position of authority held by an accused in the camp."[33]

In Sesay, Kallon and Gbao, the Appeals Chamber found that:

"[…] Under JCE 1, also known as the ‘basic’ form of JCE, liability attaches where the accused intended the commission of the crime in question and intended to participate in a common plan aimed at its commission. In other words, JCE 1 liability attaches to crimes within the common criminal purpose."[34]

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

With respect of the extent of mens rea held ICTR that in a joint criminal entreprise,

"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. As the Appeals Chamber has aptly remarked, a ‘joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself’. Determining whether a co-perpetrator possessed the necessary intent may be more difficult than in the case of a single perpetrator who, of necessity, must physically commit the crime."[35]

Besides, the accused must share all the required intents for joint criminal enterprise:

"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."[36]

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.

With regard to the subjective requirements of co-perpetration, the Pre-Trial Chamber held in Bemba Gombo that:

"[…] In particular, the suspect must […] (c) be aware of the factual circumstances enabling him to control the crimes jointly with the other co-perpetrator."[37]

In Abakaer Nourain and Jerbo Jamus, the Pre-Trial Chamber stated that:

"In the view of the Chamber, the subjective requirements of co-perpetration are the following: […] (c) the suspect must be aware of the factual circumstances enabling him or her to jointly control the crimes."[38]

In Abu Garda, the Pre-Trial Chamber held that:

"As regards the subjective requirements, both forms of liability require that […] (iii) the suspect is aware of the factual circumstances enabling him or her to jointly control the crime."[39]