30 May 2013 - ICTY

49675
5. The law on responsibility
5.1 Joint criminal enterprise
1254. The Indictment charges both of the Accused as participants in a JCE, pursuant to
Article 7 (1) of the Statute, for all the crimes charged. 2181
1255. In the context of the Tribunal’s jurisprudence, the JCE doctrine received its first
detailed treatment in the Tadić Appeal Judgement. 2182 The Tadić Appeals Chamber found in
broad terms that a person who in execution of a common criminal purpose contributes to the
commission of crimes by a group of persons may be held criminally liable subject to certain
conditions. 2183 The Appeals Chamber’s analysis of customary international law resulted in the
identification and definition of three forms of JCE liability. In the first JCE form:
all co-defendants, acting pursuant to a common design, possess the same criminal intention; for
instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this
common design (and even if each co-perpetrator carries out a different role within it), they [...]
all possess the intent to kill.
The objective and subjective prerequisites for imputing criminal responsibility to a participant
who did not, or cannot be proven to have effected the killing are as follows:
(i) the accused must voluntarily participate in one aspect of the common design (for instance, by
inflicting non-fatal violence upon the victim, or by providing material assistance to or
facilitating the activities of his co-perpetrators); and
(ii) the accused, even if not personally effecting the killing, must nevertheless intend this
result. 2184
1256. The second form of JCE, which is described as a type of the first form, was found to
have served cases where the offences charged were alleged to have been committed by
members of military or administrative units, such as those running concentration camps and
comparable “systems”. 2185
1257. The third form of JCE is characterized by a common criminal design to pursue a
course of conduct where one or more of the co-perpetrators commit an act which, while
outside the common design, is a natural and foreseeable consequence of the implementation
2181 Indictment, paras 6, 10, 12-17, 22, 25-26, 63-64, 66.
2182 Tadić Appeal Judgement, paras 172-185.
2183 Tadić Appeal Judgement, para. 190.
2184 Tadić Appeal Judgement, para. 196.
Case No. IT-03-69-T 443
30 May 2013