30 May 2013 - ICTY

49673
According to the Appeals Chamber, the common objective need not have been previously
arranged or formulated. 2194 This means that the second JCE element does not presume
preparatory planning or explicit agreement among JCE participants, or between JCE
participants and third persons. 2195
Moreover, a JCE may exist even if none or only some of the principal perpetrators of the
crimes are members of the JCE. For example, a JCE may exist where none of the principal
perpetrators are aware of the JCE or its objective, yet are procured by one or more members
of the JCE to commit crimes which further that objective. Thus, “to hold a member of a JCE
responsible for crimes committed by non-members of the enterprise, it has to be shown that
the crime can be imputed to one member of the joint criminal enterprise, and that this member
– when using a principal perpetrator – acted in accordance with the common plan”. 2196
(iii) Participation of the accused in the objective’s implementation. This is achieved
by the accused’s commission of a crime forming part of the common objective (and provided
for in the Statute). Alternatively, instead of committing the intended crime as a principal
perpetrator, the accused’s conduct may satisfy this element if it involved procuring or giving
assistance to the execution of a crime forming part of the common objective. 2197 A
contribution of an accused person to the JCE need not be, as a matter of law, necessary or
substantial, but it should at least be a significant contribution to the crimes for which the
accused is found responsible. 2198
1259. In relation to the first two elements of JCE liability, it is the common objective that
begins to transform a plurality of persons into a group, or enterprise, because what this
plurality then has in common is the particular objective. It is evident, however, that a common
objective alone is not always sufficient to determine a group, because different and
independent groups may happen to share identical objectives. It is thus the interaction or
cooperation among persons – their joint action – in addition to their common objective, that
Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 31; Krstić Trial Judgement,
para. 613; Haradinaj et al. Trial Judgement, para. 138. It follows from that and the above that the first form of
the JCE requires intent in the sense of dolus directus, and that recklessness or dolus eventualis does not suffice.
2194 Tadić Appeal Judgement, para. 227.
2195 Kvočka et al. Appeal Judgement, paras 115-119; Brđanin Appeal Judgement, para. 418, Haradinaj et al.
Trial Judgement, para. 138.
2196 Brđanin Appeal Judgement, para. 413; Martić Appeal Judgement, para. 168; Krajišnik Appeal Judgement,
paras 225-226, 235.
2197 Tadić Appeal Judgement, para. 227; Prosecutor v. Milorad Krnojelac, Trial Chamber, Decision on Form of
Second Amended Indictment, 11 May 2000, para. 15; Krajišnik Appeal Judgement, paras 215, 218, 695.
2198 Kvočka et al. Appeal Judgement, paras 97-98; Brđanin Appeal Judgement, para. 430; Krajišnik Appeal
Judgement, paras 215, 662, 675, 695-696.
Case No. IT-03-69-T 445
30 May 2013