The proper limits of individual responsibility under the doctrine of joint criminal enterprise

Journal of International Criminal Justice

Volumn 5, Issue 1, 2007, Pages 109-133

  Cassese, Antonio ^a  

^a NONE

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EID: 33947655436     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql091     Document Type: Article

References (46)

1. In discussing the mens rea element for murder as a war crime, an ICTY Trial Chamber in Stakić stated the following with regard to dolus eventualis: 'The technical definition of dolus eventualis is the following: If the actor engages in life-endangering behaviour, his killing becomes intentional if he 'reconciles himself' or 'makes peace' with the likelihood of death. Thus, if the killing is committed with 'manifest indifference to the value of human life', even conduct of minimal risk can qualify as intentional homicide. Large scale killings that would be classified as reckless murder in the United States would meet the continental criteria of dolus eventualis. The Trial Chamber emphasises that the concept of dolus eventualis does not include a standard of negligence or gross negligence' (Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, §587).
2. The Appeals Chamber that later sat on the same case held that dolus eventualis was equivalent to 'advertent recklessness' (Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, §§ 99-103), thus taking up the terminology used by the same Appeals Chamber in Tadić (Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, at §220).
3. See Report of the UN Secretary-General, 3 May 1993 (S/25704), §34 ('In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the International Tribunal should apply rules of international humanitarian law that are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise. This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law').
4. Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, §§ 436-438.
5. Separate and Partly Dissenting Opinion of Judge P.-J. Lindholm, Simić and others (IT-95-9-T), Trial Chamber, 17 October 2003, at §2.
6. The distinguished Judge was referring in particular to concepts enunciated by a leading German criminal lawyer, Carl Roxin. According to Roxin what characterizes co-perpetration is a multiplicity of persons all functionally cooperating in criminal conduct on the strength of a common criminal plan or agreement. See C. Roxin, Strafrecht - Allgemeiner Teil, vol. II (München: Beck 2003), 77 et seq.,
7. and K. Ambos, 'Joint Criminal Enterprise and Command Responsibility' in this issue.
8. Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, §62.
9. Ambos, supra note 4.
10. See, for instance, Ambos, supra note 4,
11. and E. van Sliedregt, 'Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide' in this issue.
12. Ambos, supra note 4.
13. In the first case, P., D., and a third man went to the home of the deceased, a dealer in cannabis. As soon as he opened the door, one member of the group shot him and he died shortly afterwards. The defendants were charged with murder on the basis of joint enterprise. At the trial P. gave evidence and claimed that he was present at the scene only to buy cannabis. D. did not give evidence, but it was submitted on his behalf that he was unaware of the presence of the gun until it was used and that P. was responsible for the shooting. Both defendants were convicted of murder. The Court of Appeal (Criminal Division) dismissed both defendants' appeals. In the second case, the defendant, E., who was aged 15 at the time of the offence, and W. were convicted of the murder of a police sergeant on the basis of joint enterprise. Both the defendant and W. attacked the deceased with wooden posts. At the trial it was the Crown's case that the defendant was present when W. produced the knife with which the fatal injuries were inflicted. It was maintained on the defendant's behalf that there was evidence that he had fled the scene before W. produced the knife. The Court of Appeal (Criminal Division) dismissed E.'s appeal.
14. His Lordship stated the following: At first glance there is substance in the third argument [of counsel for the Appellants] that it is anomalous that a lesser form of culpability is required in the case of a secondary party, viz. foresight of the possible commission of the greater offence, whereas in the case of the primary offender the law insists on proof of the specific intention which is an ingredient of the offence. This general argument leads, in the present case, to the particular argument that it is anomalous that the secondary party can be guilty of murder if he foresees the possibility of such a crime being committed while the primary can only be guilty if he has an intent to kill or cause really serious injury. Recklessness may suffice in the case of the secondary party but it does not in the case of the primary offender. The answer to this supposed anomaly, and other similar cases across the spectrum of criminal law, is to be found in practical and policy considerations. If the law required proof of the specific intention on the part of a secondary party, the utility of the accessory principle would be gravely undermined. It is just that a secondary party who foresees that the primary offender might kill with the intent sufficient for murder, and assists and encourages the primary offender in the criminal enterprise on this basis, should be guilty of murder. He ought to be criminally liable for harm that he foresaw and that in fact resulted from the crime he assisted and encouraged. But it would in practice almost invariably be impossible for a jury to say that the secondary party wanted death to be caused or that he regarded it as virtually certain. In the real world proof of an intention sufficient for murder would be well nigh impossible in the vast majority of joint enterprise cases. Moreover, the proposed change in the law must be put in context. The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem, the accessory principle is needed and cannot be abolished or relaxed. For these reasons, I would reject the arguments advanced in favour of the revision of the accessory principle (at 8).
15. My Lords, I recognise that as a matter of logic there is force in the argument advanced on behalf of the appellants, and that on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party. But the rules of the common law are not based solely on logic but relate to practical concerns and, in relation to crimes committed in the course of joint enterprises, to the need to give effective protection to the public against criminals operating in gangs. As Lord Salmon stated in Reg. v. Majewski [1977] A.C. 443, 482e, in rejecting criticism based on strict logic of a rule of the common law, 'this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic'. In my opinion there are practical considerations of weight and importance related to considerations of public policy which justify the principle stated in Chan Wing-Siu v. The Queen [1985] A.C. 168 and that prevail over considerations of strict logic (at 15).
16. Decision of 12 March 1947. Two former Yugoslav war prisoners, who escaped from a concentration camp, were suddenly surrounded by four local individuals near an Italian village. While one of them managed to flee, the other man was hit by two gunshots fired by D'Ottavio with his hunting rifle. The four aggressors then immediately left the scene. The injured man later died. The Teramo Court of Assize held that the accused had not intended to kill. With regard to the defendants other than D'Ottavio, it had applied Art. 116 of the Italian Criminal Code, providing that 'Where the crime committed is different from that willed by one of the participants, also that participant answers for the crime, if the fact is a consequence of his action or omission. If the crime committed is more serious than that willed, the penalty is decreased for the participant who willed the less serious offence.' On appeal, the Court of Cassation held that: The complaint concerning the application of Art. 116 is also without merit. By virtue of this provision, where the crime committed is other than the one willed by one of the participants, also that participant is accountable for the crime if the criminal result is a consequence of his action or omission. In order for a criminal event to be held to constitute the consequence of the participant's action, it is necessary that there be a causation nexus - which is not only objective but also psychological - between the fact committed and willed by all the participants and the different fact committed by one of the participants. This is so because the participant's responsibility envisaged in Art. 116 is grounded not in the notion of collective responsibility... but in the fundamental principle of concurrence of interdependent causes, upheld and specified in Arts 40 and 41 of the Criminal Code. By virtue of the latter principle, all the participants answer for a crime both where they are the direct cause of the crime and where they are the indirect cause, in accordance with the canon causa causae est causa causati [the cause of a cause is also the cause of the thing caused; i.e. whoever voluntarily creates a situation bringing to, or resulting in, criminal conduct is accountable for that conduct whether or not he willed the crime]. It is this concurrence of causes that also in this particular case of participation re-establishes the requirement of legal identity of the fact that is the precondition of the cooperation 'in the commission of same crime'. This identity is at least generic if not specific in that all the defendants have effectively contributed to the first crime that was the cause of the second. Here lies the nexus of objective causation: all participants have directly cooperated in the crime of attempted illegal detention of persons (provided for in Art. 605 of the Criminal Code) by surrounding and chasing two fugitive prisoners of war, armed with a gun and a musket for the purpose of unlawfully capturing them. This crime was the indirect cause of the subsequent and connected event consisting of the rifle shot that D'Ottavio alone fired at one of the fugitives, a rifle shot that caused a wound followed by death [see Art. 584 on manslaughter (omicidio preterintenzionale)]. There also exists a psychological causation in that all the participants shared the conscious will to engage in an attempt to unlawfully detain a person while foreseeing a possible different crime, as can be inferred from the use of weapons: It was to anticipate that one of them might have shot at the fugitives with a view to achieving the common purpose of capturing them. For the English translation of the decision see infra, 232.
17. See also the decision in Mannelli and others, 20 July 1949, infra, 243.
18. This proposition is based on the assumption that grave breaches may only be committed in international armed conflicts, a position taken in 1995 by the ICTY Appeals Chamber in Tadić (Decision on the Defence Motion for Interlocutory Appeal, Tadić (IT-94-1-A), Appeals Chamber, 2 October 1995) but probably no longer valid under current international customary law.
19. S. Glaser, 'Quelques remarques sur la définition de l'agression en droit international pénal' in Festschrift für Th. Rittler (Aalen: Verlag Scientia, 1957), at 388-393
20. Idem, 'Culpabilité en droit international pénal', in 99 Hague Recueil (1960-I), at 504-505.
21. In 2004, the ICTY Appeals Chamber took a contrary view in Brdanin (IT-99-36), with regard to genocide. In its Decision on Interlocutory Appeal of 19 March 2004, it held that 'provided that the standard applicable to that head of liability [the third category of JCE], 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). It went on to say that 'The Trial Chamber erred by conflating the mens rea requirement of the crime of genocide with the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused.' (§10). The Appeals Chamber thus reversed a prior decision of the Trial Chamber (Decision for Acquittal Pursuant to Rule 98bis, Brdanin (IT-99-36-T), 28 November 2003), which had held (correctly, in my opinion) that the specific intent required for genocide 'cannot be reconciled with the mens rea required for a conviction pursuant to the third category of JCE. The latter consists of the Accused's awareness of the risk that genocide would be committed by other members of the JCE. This is a different Mens rea and falls short of the threshold needed to satisfy the specific intent required for a conviction for genocide under Art. 4(3)(a) [of the ICTY Statute]' (§ 57). In 2005, in Kvočka and others (IT-98-30/1), the same Appeals Chamber limited the need for sharing the special intent to the first category of JCE. It 'affirmed 'the Trial Chamber's conclusion that participants in a basic or systemic form of JCE must be shown to share the required intent of the principal perpetrators. Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the JCE. If the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime'. (§110). This proposition was also taken up by an ICTR Trial Chamber (Judgment, Simba (ICTR-01-76-T), Trial Chamber, 13 December 2005, at §388).
22. See R. v. Vaillancourt, judgment of 3 December 1987, [1987] 2 S.C.R 636 (online: www.scc. lexum.umontreal.ca/1987/1987rcs2-636,at 24-29 visited on 4 January 2007)
23. and R. v. Martineau, judgment of 13 September 1990, [1990] 2. S.C.R 633 (online, www.scc.lexum. umontreal.ca/1990/199rcs2-633, at 16-20, visited on 4 January 2007). The facts in Vaillancourt are interesting. During an armed robbery, appellant's accomplice shot and killed a client. He then escaped but appellant was arrested and convicted of second degree murder (i.e. unlawful taking of human life with malice but without deliberation or premeditation) as a party to the offence. However, the two had previously agreed to commit the robbery armed only with knives; when on the night of the robbery the accomplice arrived with a gun, appellant insisted that it be unloaded; the accomplice removed three bullets from the gun and gave them to the appellant, whose glove containing the three bullets was later recovered by the police at the scene of the crime. The Court upheld the appeal against conviction and ordered a new trial. As Judge L'Heureux-Dubé later noted in his dissenting opinion in Martineau, 'The facts themselves in Vaillancourt negated mens rea .... Given these facts, it seems unlikely that Vaillancourt, or any reasonable person in his position, had reason to foresee that anyone would be killed in the course of the robbery' (at 29).
24. Judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, §§ 621-645. The Chamber concluded that: 'In the present case, General Krstić participated in a joint criminal enterprise to kill the military-aged Bosnian Muslim men of Srebrenica with the awareness that such killings would lead to the annihilation of the entire Bosnian Muslim community at Srebrenica. His intent to kill the men thus amounts to a genocidal intent to destroy the group in part. General Krstić did not conceive the plan to kill the men, nor did he kill them personally. However, he fulfilled a key coordinating role in the implementation of the killing campaign. In particular, at a stage when his participation was clearly indispensable, General Krstić exerted his authority as Drina Corps Commander and arranged for men under his command to commit killings. He thus was an essential participant in the genocidal killings in the aftermath of the fall of Srebrenica. In sum, in view of both his mens rea and actus reus, General Krstić must be considered a principal perpetrator of these crimes' (§644). Although, generally speaking the Chamber's reasoning is convincing, some points may give rise to misgivings. For instance, in §635, the Chamber seems to assume that in some respects the defendant also participated in a third-category JCE, a proposition that seems questionable (the Chamber stated the following: 'The Trial Chamber has further determined that the ordeal inflicted on the men who survived the massacres may appropriately be characterised as a genocidal act causing serious bodily and mental harm to members of the group pursuant to Article 4(2)(b). While the agreed objective of the joint criminal enterprise in which General Krstić participated was the actual killing of the military aged Bosnian Muslim men of Srebrenica, the terrible bodily and mental suffering of the few survivors clearly was a natural and foreseeable consequence of the enterprise. General Krstić must have been aware of this possibility and he, therefore, incurs responsibility for these crimes as well,'). Causing suffering to the survivors would seem to be part and parcel of the crime of genocide, not of a distinct conduct.
25. Judgment, Simić and others (IT-95-9), Trial Chamber, 17 October 2003, §§ 144-160, 983-1055.
26. 'The evidence does not show that any of the crimes charged in the Indictment were physically perpetrated by Momir Talic, other members of the ARK Crisis Staff, the leadership of the SerBiH and the SDS (including Radovan Karadzic, Momcilo Krajisnik and Biljana Plavsic), members of the ARK Assembly and the Assembly's Executive Committee and the Serb Crisis Staffs of the ARK municipalities [all participants in the common plan]. As it has not been established that these persons carried out the actus reus of any of the crimes charged in the Indictment, the Trial Chamber will not examine the existence of a JCE between the Accused and these individuals. The actus reus of the crimes charged in the Indictment that have been established beyond reasonable doubt was perpetrated by members of the army, the Bosnian Serb police, Serb paramilitary groups, Bosnian Serb armed civilians or unidentified individuals ('Physical Perpetrators'). While the names of the perpetrators have been established in a relatively small number of cases, in most cases the Physical Perpetrators have only been identified by the group they belonged to.' (Judgment, Brdanin (IT-99-36-T), Trial Chamber II, 1 September 2004, §345)
27. 'The Trial Chamber is of the view that the mere espousal of the Strategic Plan by the Accused on the one hand and many of the Relevant Physical Perpetrators on the other hand is not equivalent to an arrangement between them to commit a concrete crime. Indeed, the Accused and the Relevant Physical Perpetrators could espouse the Strategic Plan and form a criminal intent to commit crimes with the aim of implementing the Strategic Plan independently from each other and without having an understanding or entering into any agreement between them to commit a crime' (§351).'The Trial Chamber is of the view that JCE is not an appropriate mode of liability to describe the individual criminal responsibility of the Accused, given the extra-ordinarily broad nature of this case, where the Prosecution seeks to include within a JCE a person as structurally remote from the commission of the crimes charged in the Indictment as the Accused. Although JCE is applicable in relation to cases involving ethnic cleansing, as the Tadic Appeal Judgement recognises, it appears that, in providing for a definition of JCE, the Appeals Chamber had in mind a somewhat smaller enterprise than the one that is invoked in the present case.' (Ibid., §355).
28. For a well argued contrary view, see K. Gustafson,'The Requirement of an 'Express Agreement' for Joint Criminal Enterprise Liability' in this issue.
29. Decision on Interlocutory Appeal, Rwamakuba (ICTR-98-44C), Appeals Chamber, 22 October 2004, §§ 9-30.
30. ICTR Judgment, Ntakirutimana and Ntakirutimana (ICTR-96-10; ICTR-96-17), Appeals Chamber, 13 December 2004, §§ 462, 466, 468-484.
31. Judgment, Simba (ICTR-01-76), Trial Chamber, 13 December 2005, at §§ 386-396, 411-419, 420-426.
32. Judgment, Mpambara (ICTR-01-65), Trial Chamber, 11 September 2006, §§ 13-14, 38-40, 76, 113, 164.
33. 'The Trial Chamber has also emphasized that anyone regularly working in or visiting Omarska camp would have had to know that crimes were widespread throughout the camp. Knowledge of the joint criminal enterprise can be inferred from such indicia as the position held by the accused, the amount of time spent in the camp, the function he performs, his movement throughout the camp, and any contact he has with detainees, staff personnel, or outsiders visiting the camp. Knowledge of the abuses could also be gained through ordinary senses. Even if the accused were not eye-witnesses to crimes committed in Omarska camp, evidence of abuses could be seen by observing the bloodied, bruised, and injured bodies of detainees, by observing heaps of dead bodies lying in piles around the camp, and noticing the emaciated and poor condition of detainees, as well as by observing the cramped facilities or the blood-stained walls.
34. However, the Chamber subsequently held that in some exceptional cases the 'substantial' character of a participant's contribution is needed: 'The Appeals Chamber is of the opinion that a person need not have any official function in the camp or belong to the camp personnel to be held responsible as a participant in the joint criminal enterprise. It might be argued that the possibility of "opportunistic visitors" entering the camp and maltreating the detainees at random added to the atmosphere of oppression and fear pervading the camp. In the view of the Appeals Chamber, it would not be appropriate to hold every visitor to the camp who committed a crime there responsible as a participant in the joint criminal enterprise. The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required, but finds that, in the present case of 'opportunistic visitors', a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine'. (Judgment, Kvočka and others (IT-98-30/1-A). Appeals Chamber, §599.)
35. Ibid., §667.
36. Judgment, Limaj and others (IT-03-66-T), Trial Chamber II, 30 November 2005, §§ 665-670.
37. Tadić (1999), supra note 1, §227.
38. '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 .... personal knowledge of the system of the treatment is required (whether proved by express testimony for a matter of reasonable in view 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 are the members of the group and (ii) the accused willingly took that risk.' (Ibid., §228).
39. Sentencing Judgment, Tadić (IT-94-1-T), Trial Chamber II, 11 November 1999, §§ 15-18, 27-29 and 32 E and G.
40. Sentencing Judgment, Tadić (IT-94-1-T), Trial Chamber II, 14 July 1997.
41. Judgment in Sentencing Appeal, Tadić (IT-94-1-T), Appeals Chamber, 26 January 2000, §§ 55-58, 69 and 76(3).
42. 'The Trial Chamber is not, however, convinced beyond reasonable doubt that the murders, rapes, beatings and abuses committed against the refugees at Potocari were also an agreed upon objective among the members of the joint criminal enterprise. However, there is no doubt that these crimes were natural and foreseeable consequences of the ethnic cleansing campaign. Furthermore, given the circumstances at the time the plan was formed, General Krstić must have been aware that an outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of many regular and irregular military and paramilitary units in the area and the sheer lack of sufficient numbers of UN soldiers to provide protection. In fact, on 12 July, the VRS organised and implemented the transportation of the women, children and elderly outside the enclave; General Krstić was himself on the scene and exposed to firsthand knowledge that the refugees were being mistreated by VRS or other armed forces.' (Krstić Trial Judgment, supra note 2, §616.)
43. The Appeals Chamber stated the following: 'Regarding the camp killings, the Trial Chamber concluded that it 'is satisfied beyond reasonable doubt that Dr. Stakić, as President of the Crisis Staff in Prijedor, actively participated in and threw the full support of the civilian authorities behind the decision to establish the infamous Keraterm, Omarksa and Trnopolje camps'. The Appellant 'was one of the co-perpetrators in a plan to consolidate Serb power in the municipality at any cost, including the cost of the lives of innocent non-Serb civilians in the camps', and he 'simply accepted that non-Serbs would and did die in those camps'. Furthermore, the Trial Chamber found that the Appellant was 'fully aware that large numbers of killings were being committed in the camps', and that he was aware of the pervasive atmosphere of impunity for wrongdoing that prevailed in the camps, and that was likely to result in the death of the detainees. 'As to the convoy killings, the Trial Chamber found that many killings occurred during the transportation to camps of the non-Serb civilian population. The Trial Chamber found that the primary perpetrators of these crimes were members of the Prijedor 'Intervention Platoon' established by the Crisis Staff presided over by the Appellant. As this platoon was comprised of individuals with criminal records and people recently released from jail, the Trial Chamber found that '[t]o entrust the escort of a convoy of unprotected civilians to such groups of men, as Dr. Stakić along with his co-perpetrators on several occasions did in order to complete the plan for a purely Serb municipality, is to reconcile oneself to the reasonable likelihood that those travelling on the convoy will come to grave harm and even death'. Thus the Trial Chamber concluded that the Appellant 'took an active role in the organisation of the massive displacement of the non-Serb population out of Prijedor municipality', and that, along with his co-perpetrators, the Appellant reconciled himself to the reasonable likelihood that those travelling on convoys would come to grave harm and even death. 'Concerning the municipality killings, ... the Trial Chamber found that 'The Trial Chamber does not believe that the conscious object of Dr. Stakić's participation in the creation and maintenance of this environment of impunity was to kill the non-Serb citizens of Prijedor municipality. However, it is satisfied that Dr. Stakić, in his various positions, acted in the knowledge that the existence of such an environment would in all likelihood result in killings, and that he reconciled himself to and made peace with this probable outcome. 'In relation to the crime of extermination, the Trial Chamber ... concluded that the Appellant '... because of his political position and role in the implementation of the plan to create a purely Serb municipality, was familiar with the details and the progress of the campaign of annihilation directed against the non-Serb population. [The Appellant] was aware of the killings of non-Serbs and of their occurrence on a massive scale. The Trial Chamber is therefore convinced that [the Appellant] acted with the requisite intent, at least dolus eventualis, to exterminate the non-Serb population of Prijedor municipality in 1992 and finds [the Appellant] guilty of this crime, punishable under Article 5(b) of the Statute. In finding that the Appellant acted at least with dolus eventualis to commit extermination, the Trial Chamber concluded that the commission of extermination was likely, the Appellant was aware of this, and he had reconciled himself to that likelihood. This finding fulfils the requisite elements required for third category joint criminal enterprise liability: The crime of extermination was a natural and foreseeable consequence of carrying out the Common Purpose of the joint criminal enterprise, and the Appellant reconciled himself to that outcome.' (Stakić Appeals Judgment, supra note 1, §§ 93-97.)
44. Decision on Interlocutory Appeal, Brdanin, supra note 15, at §§ 9-10.
45. Decision on Jurisdictional Appeals: Joint Criminal Enterprise, Karemera and others (ICTR-98-44), Appeals Chamber, 12 April 2006, §§ 11-18.
46. This provisions stipulates that: 'In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (i) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (ii) Orders, solicits or induces the commission of such a crime that in fact occurs or is attempted; (iii) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (iv) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;' (emphasis added).