M.1. Existence of a common plan or agreement between two or more persons.

M.1.1. A plurality of persons involved in the commission of a crime.

M.1.2. Common plan or agreement which include an element of criminality

M.1. Existence of a common plan or agreement between two or more persons.

In the Charles Ble Goude Decision on the Confirmation of Charges, the Trial Chamber held that:

"134. According to article 25(3)(a) of the Statute, commission of a crime may be joint with another person. The central aspect of joint commission (also called "co-perpetration") pursuant to article 25(3)(a) of the Statute is the presence of an agreement between a plurality of persons to commit a crime - which may take the form of a "common plan". The existence of this agreement justifies the reciprocal attribution of the contributive acts of the joint perpetrators, the coordinated sum of which results in the realisation of the objective elements of a crime. It is not required that each joint perpetrator personally participates in the execution of each material element of the crime, and there may be circumstances in which a particular joint perpetrator contributes to the commission of the crimes in ways other than by realising a material element of the crimes, such as by performing a crucial role at the planning or preparation stage, including when the common plan is conceived."[257]

M.1.1. A plurality of persons involved in the commission of a crime.

M.1.1.1. JCE

Before the concept of joint perpetration was developed by the ICC, several tribunals applied the concept of a Joint Criminal Enterprise in cases where a plurality of persons was involved.

M.1.1.1.1. Common requirements for a Joint Criminal Enterprise (ICTY)

In Kvočka et al., the Trial Chamber held that:

"For joint criminal enterprise liability, "an accused must have carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his acts or omissions facilitated the crimes committed through the enterprise in order to be criminally liable as a participant in a joint criminal enterprise."[1]

However, in Brdjanin, the Trial Chamber was of the opinion that:

"For both the first and the third categories of [joint criminal enterprise] the Prosecution must prove: 1. a plurality of persons; 2. the existence of a common plan, design or purpose (‘common plan’) that amounts to or involves the commission of a crime provided for in the Statute; and 3. the participation of the accused in the common plan involving the perpetration of one of the crimes provided for in the Statute."[2]

The Krnojelac Appeals Chamber stated:

"The Appeals Chamber [in Tadić ] declares that the actus reus of this mode of participation in one of the crimes provided for in the Statute is common to each of the three categories of cases set out above and comprises the following three elements: (i) A plurality of persons. They need not be organised in a military, political or administrative structure, as is demonstrated clearly by the Essen Lynching and the Kurt Goebell cases. (ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise. (iii) Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose." (emphasis in original)[3]

In Simić, Tadić and Zarić, the Trial Chamber held that:

"For joint criminal enterprise to be constituted, the existence of the following elements need to be proved: a plurality of persons, not necessarily organised; a common plan, design or purpose (involving the commission of a crime proscribed in the Statute); the participation of the accused in the common plan or design to perpetrate a crime under the Statute; a shared intent between all the participants to further the common plan or design involving the commission of a crime; that the accused, even if not personally effecting the crime, intended the result. In addition, in the case of persecution, that all the participants in the common plan, including the Accused, had a discriminatory intent needs to be demonstrated."[4]

The Trial Chamber in Blagojević and Jokić was of the opinion that:

"To find individual criminal responsibility pursuant to a joint criminal enterprise in any of the three categories, the elements which must be established are: (i) a plurality of persons; (ii) the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (iii) the participation of the accused in the common plan involving the perpetration of one of the crimes provided for in the Statute."[5]

The Kvočka et al. Appeals Chamber stated:

"The Appeals Chamber [in Vasiljević] has explained the actus reus of the participant in a joint criminal enterprise as follows: First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose."[6]

In Stakić, the Appeals Chamber held that:

"The Tribunal’s jurisprudence recognises three categories of joint criminal enterprise liability. Regardless of the category at issue, or the charge under consideration, a conviction requires a finding that the accused participated in a joint criminal enterprise. There are three requirements for such a finding. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no need for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required. This participation need not involve the commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose."[7]

The Mrkšić et al. Trial Chamber was of the opinion that:

"The jurisprudence of the Tribunal has established three categories of JCE. The actus reus of a participant in a JCE is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Secondly, the existence of a common plan, design or purpose, which amounts to or involves the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. Nor does JCE liability require an understanding or an agreement between the accused and the principal perpetrator of the crime to commit that particular crime. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in a unison to put into effect a JCE. Thirdly, the accused must have participated in the common design, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. The accused’s contribution need not be necessary, in a sense of sine qua non, to achieve the common criminal purpose; indeed, the accused’s contribution to the common purpose does not even need to be substantial, as a matter of law. However, the contribution of the accused in the common plan should at least be a significant one. Not every type of conduct amounts to a significant enough contribution to the common purpose to impute criminal liability to the accused for the crimes committed. The presence of the participant in the JCE at the time the crime is committed by the principal offender is not required."[8]

In Brđ;anin, the Appeals Chamber held that:

"There are three requirements for such a finding. First, a plurality of persons. Second, the existence of a common purpose (or plan) which amounts to or involves the commission of a crime provided for in the Statute. Third, the participation of the accused in this common purpose."[9]

In Tadić, the Appeals Chamber distinguished three categories of joint criminal enterprise:

"Many post-World War II cases concerning war crimes proceed upon the principle that when two or more persons act together to further a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all the members of the group. Close scrutiny of the relevant case law shows that broadly speaking, the notion of common purpose encompasses three distinct categories of collective criminality."[10]

This finding was inter alia confirmed by the Krnojelac Appeals Chamber:

"After considering the relevant case-law, relating principally to many war crimes cases tried after the Second World War, the Tadić Appeals Judgement sets out three categories of cases regarding joint criminal enterprise."[11]

In the same vein the Vasiljević Appeals Chamber held that:

"[t]hree categories of joint criminal enterprise have been identified by the International Tribunal’s jurisprudence."[12]

In the Martić case the Trial Chamber confirmed that:

"[t]hree categories of JCE have been identified in customary international law"."[13]

The Mrkšić et al., Trial Chamber stated that:

"[t]he jurisprudence of the Tribunal has established three categories of JCE. The actus reus of a participant in a JCE is common to all three categories."[14]

The Popovic et al., Trial Chamber reaffirmed this general classification system:

"The first category is a ‘basic’ form of JCE, which is characterised by cases where all participants, acting pursuant to a common purpose, possess the same criminal intention. The second category is a ‘systemic’ form of JCE, characterised by the existence of an organised system of ill-treatment. The third category is an ‘extended’ form of JCE, which involves responsibility of a participant in a JCE for a crime beyond the common purpose but which is nevertheless a natural and foreseeable consequence of carrying out the crimes forming part of the common purpose (‘extended crime’)."[15]

The ICTR and SCSL agreed that the three categories of JCE only differ with regard to the required mens rea and held that:

"the actus reus is essentially common to all three categories of JCE. What primarily distinguishes them from each other is the mens rea required."[16]

In Brima, Kamara, and Kanu the Trial Chamber pointed out that the common purpose and objectives might change over time and result in a new JCE:

"It is not in dispute that a new JCE may emerge from a common purpose fundamentally different in nature and in scope from the initial common purpose, and the members in the initial JCE may also be members to this new JCE, if they adhere to this new common purpose."[17]

In the same vein the Kvočka et al. Trial Chamber stated that:

"[a] joint criminal enterprise can exist whenever two or more people participate in a common criminal endeavor [&#x85];Within a joint criminal enterprise there may be other subsidiary criminal enterprises."[18]

The Brima, Kamara and Kanu Trial Judgment listed four categories of supporting facts which must be present in an indictment charging an accused with JCE:

"(i). the nature or purpose of JCE

the time at which or the period at which the enterprise is said to have existed;

the identity of those engaged in the enterprise, so far their identity is known, but at least by reference to their category as a group;

"the nature of the participation by the accused in that enterprise."[19]

In addition, the Sesay, Kallon and Gbao Trial Chamber stated that:

"[…] the identities of all participants and the continuing existence of the joint criminal enterprise over the entire time period alleged in the Indictment are not elements of the actus reus of the joint criminal enterprise that need to be proven beyond reasonable doubt by the Prosecution."[20]

Moreover, the Chamber took the view that although:

"[…] the participants in a joint criminal enterprise should be identified as precisely as possible, we recognise that the identity of every member of the joint criminal enterprise need not be ascertained with certainty."[21]

In Vasiljević, the Appeals Chamber stated that:

"[T]he mens rea differs according to the category of joint criminal enterprise under consideration:

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)

With regard to the systemic form of joint criminal enterprise (which, as noted above, is 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 system of ill-treatment.

"With regard to the extended form of joint criminal enterprise, what is required is the intention to participate in and further the common 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 which was part of the common design 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’– that is, being aware that such crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise."[22]

Similarly, the Stakić Trial Chamber argued that:

"The Trial Chamber notes with special reference to the mens rea of joint criminal enterprise that Article 7(1) lists modes of liability only. These cannot change or replace elements of crimes defined in the Statute. In particular, the mens rea elements required for an offence listed in the Statute cannot be altered."In respect of the mens rea, the Trial Chamber re-emphasises that modes of liability can not change or replace elements of crimes defined in the Statute and that the accused must also have acted in the awareness of the substantial likelihood that punishable conduct would occur as a consequence of coordinated cooperation based on the same degree of control over the execution of common acts. Furthermore, the accused must be aware that his own role is essential for the achievement of the common goal."[23]

In Mrkšić et al., the Trial Chamber stated:

"As to the mens rea, the requirements of the three categories of JCE differ. In the first, basic type of JCE the accused intends to perpetrate a crime and this intent is shared by all coperpetrators. In the second type, embracing the so-called ‘concentration camp’ cases, or systemic JCE, the accused has knowledge of the 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. The third type concerns cases in which one of the participants commits a crime outside the common design. The mens rea in such cases is twofold. First, the accused must have the intention to take part in and contribute to the common criminal purpose. Secondly, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take that risk by joining or continuing to participate in the enterprise. Whether the crimes committed outside the common purpose of the JCE were ‘a natural and foreseeable consequence thereof’ must be assessed in relation to the knowledge of a particular accused, i.e. the Prosecution must prove that the accused had sufficient knowledge that the additional crimes were a natural and foreseeable consequence."[24]

M.1.1.1.2. First categorie ("basic form")

Regarding the first categorie, the Tadić Appeals Chamber held that:

"[t]he first such category is represented by cases where 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 nevertheless 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."[25]

The Simić, Tadić and Zarić Trial Chamber held that:

"[t]he first category is where all the participants in the joint criminal enterprise share the same criminal intent. To be established, it must be shown that the accused must have (i) voluntarily participated in one of the aspects of the common criminal design; and (ii) intended the criminal result, even if not personally effecting it."[26]

In the same vein the Vasiljević Appeals Chamber pointed out that:

"[t]he first category is a ‘basic’ form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention. An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill."[27]

In Kvočka et al. the Appeals Chamber confirmed that:

"[i]n the first form of joint criminal enterprise, all of the co-perpetrators possess the same intent to effect the common purpose."[28]

This was also reaffirmed by the Trial Chamber in Limaj et al.:

"In the first type of joint criminal enterprise the accused intends to perpetrate a crime and this intent is shared by all co-perpetrators."[29]

In the jurisprudence of the ICTR it is established:

"The first category is a "basic" form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention. An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill."[30]

M.1.1.1.3. Second categorie ("systematic form")

The second categorie was described by the Tadić Appeals Chamber as follows:

"The second distinct category of cases is in many respects similar to that set forth above, and embraces the so-called "concentration camp" cases. The notion of common purpose was applied to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; i.e., by groups of persons acting pursuant to a concerted plan."[31]

"This category of cases […] is really a variant of the first category, considered above […] The mens rea element comprised: (i) knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat inmates. It is important to note that, in these cases, the requisite intent could also be inferred from the position of authority held by the camp personnel. Indeed, it was scarcely necessary to prove intent where the individual’s high rank or authority would have, in and of itself, indicated an awareness of the common design and an intent to participate therein."[32]

The Krnojelac Appeals Chamber held that:

"although the second category of cases defined by the Tadić Appeals Judgement (‘systemic’) clearly draws on the Second World War extermination and concentration camp cases, it may be applied to other cases and especially to the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. Although the perpetrators of the acts tried in the concentration camp cases were mostly members of criminal organisations, the Tadić case did not require an individual to belong to such an organisation in order to be considered a participant in the joint criminal enterprise. According to the Tadić Appeals Judgement, this category of cases – a variant of the first – is characterised by the existence of an organised system set in place to achieve a common criminal purpose."[33]

In Simić, Tadić and Zarić the Trial Chamber pointed out that:

"[p]ursuant to the second category, the Prosecution needs to demonstrate that the accused (i) personally knew of the system to ill-treat the detainees, and (ii) had the intent to further this system."[34]

In the same vein the Kvočka et al. held that:

"[t]he second form of joint criminal enterprise, the ‘systemic’ form, a variant of the first form, is characterized by the existence of an organized criminal system, in particular in the case of concentration or detention camps. This form of joint criminal enterprise requires personal knowledge of the organized system and intent to further the criminal purpose of that system."[35]

In addition, the Kvočka et al. Appeals Chamber pointed out that:

"although commonly referred to as the ‘category known as concentration camps,’ the second category of joint criminal enterprise, known as systemic, covers all cases relating to an organised system with a common criminal purpose perpetrated against the detainees. This concept of criminal responsibility has been shaped by the case-law derived from concentration camp cases from the Second World War, but reference to the concentration camps is circumstantial and in no way limits the application of this mode of responsibility to those detention camps similar to concentration camps."[36]

The Vasiljević Appeals Chamber confirmed that:

"[t]he second category is a ‘systemic’ form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment. An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise."[37]

In Limaj et al. the Trial Chamber explained that:

"[i]n the second type, embracing the so-called ‘concentration camp’ cases, or systemic [joint criminal enterprise], 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. In such cases the requisite intent may also 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."[38]

The Ntakirutimana Appeals Chamber stated that:

"[t]he second category is a "systemic" form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment. An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise."[39]

M.1.1.1.4. Third categorie ("extended form")

With regard to the the extended form of JCE, the Tadić Appeals Chamber held that:

"The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose."[40]

"[T]he requirements which are established by these authorities are two-fold: that of a criminal intention to participate in a common criminal design and the foreseeability that criminal acts other than those envisaged in the common criminal design are likely to be committed by other participants in the common design."[41]

"[I]t is appropriate to apply the notion of "common purpose" only where the following requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal purposes of that enterprise; and (ii) the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have been able to predict this result. It should be noted that more than negligence is required. What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called dolus eventualis is required (also called "advertent recklessness" in some national legal systems)."[42]

Vasiljević Appeals Chamber stated that:

"[t]he third category is an ‘extended’ form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of the effecting of that common purpose. An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect ‘ethnic cleansing’) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians."[43]

In Kvočka et al. the Appeals Chamber confirmed that:

"[t]he third, ‘extended’ form of joint criminal enterprise entails responsibility for crimes committed beyond the common purpose, but which are nevertheless a natural and foreseeable consequence of the common purpose. The requisite mens rea for the extended form is twofold. First, the accused must have the intention to participate in and contribute to the common criminal purpose. Second, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise."[44]

The Ntakirutimana Appeals Chamber found that:

"[t]he third category is an "extended" form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose […] An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect "ethnic cleansing") with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians."[45]

Since the third type of JCE is not comparable to the new concept of joint perpetration, it will not be dealt with under the subjective requirements of joint perpetration.

In Krstić, the Appeals Chamber held that:

"For an accused to incur criminal responsibility for acts that are natural and foreseeable consequences of a joint criminal enterprise, it is not necessary to establish that he was aware in fact that those other acts would have occurred. It is sufficient to show that he was aware that those acts outside the agreed enterprise were a natural and foreseeable consequence of the agreed joint criminal enterprise, and that the accused participated in that enterprise aware of the probability that other crimes may result."[46]

It was stated by the Appeals Chamber in Tadić that:

"[R]esponsibility 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."[47]

The The Babic Trial Chamber reasoned that:

"Liability for crimes committed outside the plan of the [joint criminal enterprise] is possible if secondary crimes were the foreseeable consequence of the crimes agreed upon."[48]

In Blaskic, the Appeals Chamber stated that:

"In the Vasiljević Appeal Judgement, the Appeals Chamber considered the issue of mens rea, but in relation to the extended form of joint criminal enterprise […]: With regard to the extended form of joint criminal enterprise, what is required is the intention to participate in and further the common 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 which was part of the common design 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’ – that is, being aware that such crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise."[49]

The Kvočka et al. Appeals Chamber held that:

"[F]or crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise. 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."[50]

"The Appeals Chamber notes […] that the Trial Chamber did not hold any of the Appellants responsible for crimes beyond the common purpose of the joint criminal enterprise. Nonetheless, the Appeals Chamber wishes to affirm that an accused may be responsible for crimes committed beyond the common purpose of the systemic joint criminal enterprise, if they were a natural and foreseeable consequence thereof. However, it is to be emphasized that this question must be assessed in relation to the knowledge of a particular accused. This is particularly important in relation to the systemic form of joint criminal enterprise, which may involve a large number of participants performing distant and distinct roles. What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise. A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him."[51] (emphasis in original)

The Kvočka et al. Trial Chamber stated that:

"Where the crime requires special intent, such as the crime of persecution […] the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator."[52]

In Babic, the Appeals Chamber argued that:

"Under the third, ‘extended’ prong of the joint criminal enterprise theory recognised by the jurisprudence of the International Tribunal, the critical question with regard to the Appellant’s mens rea was whether he had the intent to participate in the joint criminal enterprise, and not whether he specifically sought to bring about secondary crimes; so long as the secondary crimes were foreseeable and the Appellant willingly undertook the risk that they would be committed, he had the legally required ‘intent’ with respect to those crimes."[53]

It was held by the Appeals Chamber in Deronjic that:

"The requisite mens rea for responsibility for crimes committed as a result of one’s acts or omissions under the extended form of joint criminal enterprise is twofold: First, the accused must have the intention to participate in and contribute to the common criminal purpose. Second, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise."[54]

The Appeals Chamber in Stakić reasoned that:

"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. (footnote omitted). 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."[55]

In Brdjanin, the Trial Chamber was of the view that:

"[T]he participant in a [joint criminal enterprise] of the first category must share with the person who physically carried out the crime the state of mind required for that crime. In the case of the crime of genocide, the two must share the specific intent."[56]

"With respect to the third category of joint criminal enterprise, "[w]here the crime charged is the crime of genocide, the Appeals Chamber [in the Rule 98 bis Appeal in Brdjanin] has held that ‘the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent’."[57]

However, in Stakić, the Trial Chamber stated that:

"According to this Trial Chamber, the application of a mode of liability can not replace a core element of a crime. The Prosecution [who argued that in the narrow case of a type 3 joint criminal enterprise, proof of dolus specialis is not required] confuses modes of liability and the crimes themselves. Conflating the third variant of joint criminal enterprise and the crime of genocide would result in the dolus specialis being so watered down that it is extinguished. Thus, the Trial Chamber finds that in order to ‘commit’ genocide, the elements of that crime, including the dolus specialis must be met. The notions of ‘escalation’ to genocide, or genocide as a ‘natural and foreseeable consequence’ of an enterprise not aimed specifically at genocide are not compatible with the definition of genocide under Article 4(3)(a)."[58]

The Brdjanin Trial Chamber held that:

"[T]he Trial Chamber finds it necessary to distinguish the notion of ‘escalation’ to genocide from the notion of genocide as a ‘natural and foreseeable consequence’ of a [joint criminal enterprise] not aimed specifically at genocide. ‘Escalation’ to genocide merely designates a factual allegation that the specific intent for genocide was formed at a stage later than the onslaught of an initial operation not amounting to genocide. According to the Krstić Trial Chamber, ‘Article 4 of the Statute does not require that the genocidal acts be premeditated over a long period. It is conceivable that, although the intention at the outset of an operation was not the destruction of a group, it may become the goal at some later point during the implementation of the operation.’ The factual scenario described does not rule out that genocide may have been within the common purpose of the [joint criminal enterprise]."[59]

However, in Stakić, the Trial Chamber argued:

"The notions of ‘escalation’ to genocide, or genocide as a ‘natural and foreseeable consequence’ of an enterprise not aimed specifically at genocide are not compatible with the definition of genocide under Article 4(3)(a)."[60]

The Popovic et al. Trial Chamber held that:

"For an accused to incur third category JCE liability, the Prosecution must first prove, as for the first category JCE, that the accused possesses the intent for the crimes forming part of the common purpose. Further, an accused ‘can only be held responsible for a crime outside the common purpose, 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 Appeals Chamber specified that ‘willingly took that risk’ means that the accused, ‘with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.’ For third category JCE liability, the accused does not need to possess the requisite intent for the extended crime—the crime falling outside the common purpose. This also applies to specific intent crimes. The mental state of the person or persons carrying out the actus reus of the extended crime is therefore not relevant for the finding of the mental state of the accused, but is determinative to the finding of which extended crime was committed, if any."[61]

M.1.1.1.5. Interrelation between the three forms

With references to the ICTY Kvočka Appeals Judgment and the ICTR Gacumbitsi Appeals Judgment, the SCSL Trial Chamber held that the failure to plead the category of JCE charged constitutes a defect in the indictment and concluded that the first and third form of JCE are logically mutual excluded:

"If the charged crimes are allegedly within the common purpose, they can logically no longer be a reasonably foreseeable consequence of the same purpose and vice versa."[62]

However, the Appeals Chamber disagreed and took the view that:

"[t]he Trial Chamber erred in concluding that the Prosecution could not plead the basic and extended forms of joint criminal enterprise liability in the alternative on the grounds that the two forms, as pleaded, logically exclude each other. Pleading the basic and extended forms of JCE in the alternative is now a well-established practice in the international criminal tribunals."[63]

The mental elements of all three categories of JCE vary from each other:

The first category of JCE:

"[…] The basic form of joint criminal enterprise requires the intent to perpetrate a certain crime, this intent being shared by all co-perpetrators."[64]

The second category of JCE:

"[…] The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment."[65]

The third category of JCE:

"[…] Under the extended form of joint criminal enterprise an accused can only be held responsible for a crime outside the common purpose 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."[66]

"[…] Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common 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 which was part of the common design 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’ (footnote omitted) – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise."[67]

M.1.1.2. ICTY

The Simić, Tadić and Zarić Trial Chamber recalled that:

"[t]he Appeals Chamber in Tadić held that persons who contribute to the commission of crimes by a group in execution of a common criminal purpose are subject to criminal liability subject to certain conditions."[68]

In Blagojević and Jokić the Trial Chamber recalled that:

"[u]nder the jurisprudence of the Tribunal, Article 7(1) has been found to contain the basis for charging individuals with the commission of crimes contained in the Statute ‘where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons.’ This form of liability pursuant to Article 7(1) has become known by several terms, including ‘joint criminal enterprise.’"[69]

The Limaj et al. Trial Chamber stated that:

"[…] When a number of persons are involved in a common plan aimed at the commission of a crime, they can be convicted of participation in a joint criminal enterprise (‘JCE’) in relation to that crime."[70]

In Vasilijevic, the Appeals Chamber stated that:

"The actus reus of the participant in a joint criminal enterprise is common to each of the three above categories […]. First, a plurality of persons is required."[71]

Similarly, the Blagojević and Jokić Trial Chamber held that:

"The first element which must be established is that a plurality of persons participated in the joint criminal enterprise."[72]

The Vasilijevic Appeals Chamber continued to explain that:

"[T]he plurality of persons] need not be organised in a military, political or administrative structure."[73]

In Popovic et al., the Trial Chamber stated that:

"The first element is the participation of a plurality of persons in a common purpose. It is not required that each member in the JCE is identified by name: "it can be sufficient to refer to categories or groups of persons." However, the participants need not be organised into any sort of military, political, or administrative structure."[74]

In Gotovia et al., the Trial Chamber stated that:

"A joint criminal enterprise exists when a plurality of persons participates in the realization of a common criminal objective. The persons participating in the criminal enterprise need not be organized in a military, political, or administrative structure. They must be identified with specificity, for instance by name or by categories or groups of persons."[75]

M.1.1.2. ICTR

In Ntakirutimana Appeals Judgment was held that:

"For joint criminal enterprise liability to arise an accused must act with a number of other persons. They need not be organised in a military, political or administrative structure."[76]

M.1.1.3. SCSL

Instead of being specifically aimed at committing the alleged crimes, a JCE only needs to involve the commission of crime:

"The Trial Chamber notes the position taken by the Prosecution that a JCE only needs to "involve" the commission of a crime. This position is indeed supported by jurisprudence. But the fundamental question that arises from this is whether the agreement involved international crimes at the inception of the JCE."[77]

In Sesay, Kallon and Gbao Trial Judgment SCSL held that:

"It is also legally possible for an Accused to withdraw from the joint criminal enterprise after which point, he will not bear legal responsibility for the acts of the other members of the group. The identity of the other person or persons making up the plurality may change over the course of the existence of the joint criminal enterprise as participants enter or withdraw from it."[78]

In Tadić the Appeals Chamber held that:

"[T]he Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions."[79]

In Krstić the Trial Chamber said that:

"‘Joint criminal enterprise’ liability is a form of criminal responsibility which the Appeals Chamber found to be implicitly included in Article 7(1) of the Statute. It entails individual responsibility for participation in a joint criminal enterprise to commit a crime."[80]

The Krnojelac Appeals Chamber held that:

"[t]his provision [Article 7(1)] lists the forms of criminal conduct which, provided all the other conditions are satisfied, may result in the accused’s incurring criminal responsibility if he has committed any one of the crimes provided for by the Statute in one of the ways set out in this provision. Article 7(1) of the Statute does not make explicit reference to ‘joint criminal enterprise.’ However, the Appeals Chamber recalls that, after considering the question in the Tadić Appeals Judgment, it concluded that participation in a joint criminal enterprise as a form of liability, or the theory of common purpose as the Chamber referred to it, was implicitly established in the Statute."[81]

M.1.1.4. ICC

In the Lubanga case the Pre-Trial Chamber took the view:

"that the concept of co-perpetration is originally rooted in the idea that when the sum of the co-ordinated individual contributions of a plurality of persons results in the realization of all of the objective elements of a crime, any person making a contribution can be held vicariously responsible for the contributions of all the others and, as a result, can be considered as a principal to the whole crime."[82]

Moreover, the Chamber observed that:

"[t]he concept of co-perpetration based on joint control over the crime is rooted in the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task."[83]

M.1.2. Common plan or agreement which include an element of criminality.

M.1.2.1 ICTY

In Tadić, the Appeals Chamber explained that one of the required elements is:

"[t]he existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute." (emphasis omitted)"[84]

The Staki&#263 Trial Chamber stated that:

"the arrangement or understanding need not be express, and it may be inferred from all the circumstances."[85]

In Krnojelac, the Appeals Chamber held that:

"The Appeals Chamber notes that, with regard to the crimes considered within a systemic form of joint criminal enterprise, the intent of the participants other than the principal offenders presupposes personal knowledge of the system of ill-treatment (whether proven by express testimony or a matter of reasonable inference from the accused’s position of authority) and the intent to further the concerted system of ill-treatment. Using these criteria, it is less important to prove that there was a more or less formal agreement between all the participants than to prove their involvement in the system."[86]

The Stakić Trial Chamber argued that:

"In order to establish individual criminal responsibility pursuant to a joint criminal enterprise, the Prosecution must prove, for all three categories the existence of a common criminal plan between two or more persons in which the accused was a participant."[87]

The Trial Chamber in Simić, Tadić and Zarić was of the view that:

"Regarding the second category of joint criminal enterprise, the Appeals Chamber in Krnojelac held that proof of the existence of a formal or informal agreement between the participants is not crucial."[88]

However in Krnojelac, the Appeals Chamber held that:

"The Appeals Chamber [in Tadić ] declares that the actus reus of this mode of participation in one of the crimes provided for in the Statute is common to each of the three categories of cases set out above and [requires, inter alia] […] The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute […]."[89]

Similarly, the Blagojević and Jokić Trial Chamber stated that:

"To find individual criminal responsibility pursuant to a joint criminal enterprise in any of the three categories [requires, inter alia] […] the existence of a common plan, design or purpose […]."[90]

In Brdjanin, the Trial Chamber held that:

"For both the first and the third categories of [joint criminal enterprise] the Prosecution must prove: 1. a plurality of persons; 2. the existence of a common plan, design or purpose (‘common plan’) that amounts to or involves the commission of a crime provided for in the Statute; and 3. the participation of the accused in the common plan involving the perpetration of one of the crimes provided for in the Statute."[91]

The Appeals Chamber in Vasiljević declared that:

"[T]he Appellant alleges that the Trial Chamber erred in finding that the existence of an arrangement or understanding amounting to an agreement between two or more persons need not be expressed but can also be inferred." However, "[i]t clearly results from Tadić Appeals Judgement that ‘[t]here is no necessity for th[e] plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.’ The Appeals Chamber in the Furundzija Appeals Judgement relied on this reasoning, when it identified the legal elements of co- perpetration in a joint criminal enterprise. The Appeals Chamber finds, therefore, that the Appellant’s submission is not well founded and this sub-ground of appeal must fail."[92]

In Tadić, the Appeals Chamber held that:

"The common plan or purpose may […] be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise […]."[93]

The Vasiljević Appeals Chamber stated that:

"The common plan or purpose may materialise extemporaneously […]."[94]

The Trial Chamber in Brdjanin was of the view that:

"A common plan amounting to or involving an understanding or an agreement between two or more persons that they will commit a crime must be proved."[95]

"[T]he common plan need not be express and may be inferred from all the circumstances."[96]

"While the Common Plan necessarily has to amount to, or involve, an understanding or an agreement between two or more persons that they will commit a crime within the Statute, the underlying purpose for entering into such an agreement (i.e., the ultimate aim pursued by the commission of the crimes) is irrelevant for the purposes of establishing individual criminal responsibility pursuant to the theory of [joint criminal enterprise]."[97]

"In order to draw this inference [of an understanding or agreement between the accused and others accused of being members in the joint criminal enterprise], it must be the only reasonable inference available from the evidence."[98]

The Trial Chamber in Blagojević and Jokić argued that:

"The existence of an agreement or understanding for the common plan, design or purpose need not be express, but may be inferred from all the circumstances. The participation of two or more persons in the commission of a particular crime may itself establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that particular criminal act."[99]

"[T]he common plan or purpose may […] be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise."[100]

"Alternatively, it may be that only some of the original members of the first joint criminal enterprise joined the second joint criminal enterprise, and thus entail criminal liability for this enterprise. A person will only be held liable for that joint criminal enterprise to which he agreed to participate in under the first category of joint criminal enterprise, and the natural and foreseeable consequences thereof for the third category of joint criminal enterprise."[101]

In Kvočka et al., the Appeals Chamber held that:

"The common purpose need not be previously arranged or formulated; it may materialize extemporaneously."[102]

"The jurisprudence on this issue is clear. Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime."[103]

"In the Krnojelac Appeal Judgement, the Appeals Chamber confirmed that the systemic form of joint criminal enterprise does not require proof of an agreement: The Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadić case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom [prison complex in Foca] sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers ‘the principal perpetrators of the crimes committed under the system’ to commit those crimes." Accordingly, the Appellants’ arguments concerning the non-existence of an agreement must be dismissed."[104]

"In order to circumscribe the responsibility of an accused for participation in a second category of joint criminal enterprise as a co-perpetrator, it is less important to prove that there was a more or less formal agreement between all the participants than to prove their involvement in the system. Once it has been established that the accused had knowledge of the system of discriminatory ill-treatment, it is a question of determining his involvement in that system, without it being necessary to establish that he had entered into an agreement with the principal perpetrators of the crimes committed under the system to commit those crimes. The Appeals Chamber considers that the Trial Chamber did not err in law by not requiring evidence of a formal agreement between the co-perpetrators in order to participate in the joint criminal enterprise."[105]

"In a joint criminal enterprise such as that conducted in Omarska camp [a 2nd type of joint criminal enterprise], it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment."[106]

In Mrkšić et al., the Trial Chamber stated that:

"The Chamber notes that the Appeals Chamber has recently clarified that the principal perpetrators carrying out the actus reus of the crimes set out in the indictment do not have to be members of the JCE. What matters in such cases is whether the crime in question forms part of the common purpose and whether at least one member of the JCE used the principal perpetrator acting in accordance with the common plan. In this respect, when a member of the JCE uses a person outside the JCE to carry out the actus reus of a crime, the fact that this person knows of the existence of the JCE, i.e. of the common purpose, may be a factor taken into consideration when determining whether the crime forms part of the common criminal purpose."[107]

The Haradinaj et al. Trial Chamber was of the view that:

"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."[108]

In Boskoski and Tarculovski, the Trial Chamber reasoned:

"The perpetrators carrying out the actus reus of the crimes set out in the indictment do not have to be members of the JCE. What matters in such cases is whether the crime in question forms part of the common purpose and whether at least one member of the JCE used the perpetrator acting in accordance with the common plan. In this respect, when a member of the JCE uses a person outside the JCE to carry out the actus reus of a crime, the fact that this person knows of the existence of the JCE, i.e. of the common purpose, may be a factor taken into consideration when determining whether the crime forms part of the common criminal purpose."[109]

The Popovic et al. Trial Chamber stated that:

"The common criminal objective of the JCE may also evolve over time, as the Appeals Chamber has held "a JCE can come to embrace expanded criminal means, as long as the evidence shows that the JCE members agreed on this expansion of means." It means that the crimes that make up the common purpose may evolve and change over time and as such the JCE may have different participants at different times. Determinative factors are the accused’s intention and whether the expanded crimes became part of the common objective."[110]

"The Appeals Chamber has held that persons carrying out the actus reus of the crime forming part of the common purpose need not have been participants in or members of the JCE. Consequently, persons carrying out the actus reus of the crime need not share the intent of the crime with the participants in the common purpose. Nor is the mental state of persons carrying out the actus reus of a crime a determinative factor in finding the requisite intent for the participants in a JCE. It is necessary however, that the JCE member used the non-member to commit the actus reus of a crime that can be inputed to the member of the JCE. This is assessed on a case-by case basis."[111]

The Trial Chamber in Martić held that:

"The first form of JCE requires the existence of a common purpose, which amounts to, or involves the commission of one or more crimes provided for in the Statute. The common purpose need not be previously arranged or formulated and may materialise extemporaneously. It is not required that the principal perpetrators of the crimes which are part of the common purpose be members of a JCE. An accused or another member of a JCE may use the principal perpetrators to carry out the actus reus of a crime. However, "an essential requirement in order to impute to any accused member of the JCE liability for a crime committed by another person is that the crime in question forms part of the common criminal purpose." This may be inferred, inter alia, from the fact that "the accused or any other member of the JCE closely cooperated with the principal perpetrator in order to further the common criminal purpose."[112]

The Brdjanin, Trial Chamber stated that:

"[p]ersons who contribute to the commission of crimes in execution of a common criminal purpose are subject to criminal liability as a form of ‘commission’ of a crime pursuant to Article 7(1) of the Statute, subject to certain conditions."[113]

In Stakić, the Trial Chamber held that:

"For co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated co-operation and joint control over the criminal conduct. For this kind of co-perpetration it is typical, but not mandatory, that one perpetrator possesses skills or authority which the other perpetrator does not. These can be described as shared acts which when brought together achieve the shared goal based on the same degree of control over the execution of the common acts. In the words of Roxin: ‘The co-perpetrator can achieve nothing on his own […] The plan only ‘works’ if the accomplice works with the other person.’ Both perpetrators are thus in the same position. As Roxin explains, ‘they can only realize their plan insofar as they act together, but each individually can ruin the whole plan if he does not carry out his part. To this extent he is in control of the act.’"[114]

M.1.2.2. ICTR

Following the settled jurisprudence, ICTR also considered the a common purpose, plan or design as necessary for the existence of JCE, and this common purpose, plan or design are allowed to be derived from circumstances:

"[…] Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts."[115]

However, according to the ICTR:

"it is not necessary for a participant to have participated in its planning. All that is required is the participation of an accused in the common design involving the perpetration of one of the crimes provided for in the Statute."[116]

"Unlike conspiracy, no specific agreement to commit the crime need be shown: the common purpose may arise spontaneously and informally, and the persons involved need not be associated through a formal organization."[117]

M.1.2.3. SCSL

Just like the ICTY and ICTR jurisprudence, the SCSL held that:

"[…] Both JCE 1 and JCE 3 require the existence of a common criminal purpose which must be shared the members of the JCE, including in particular the accused."[118]

SCSL specifically pointed out the requirement of common state of mind:

"Even though the contribution to the joint criminal enterprise need not be criminal in nature, the purpose has to be inherently criminal and the perpatrators, including the accused, must have a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out."[119]

SCSL also followed the same pattern and held that:

"[…] It can be seen from a review of the jurisprudence of the international criminal tribunals that the criminal purpose underlying the JCE can derive not only from its ultimate objective, but also from the means contemplated to achieve that objective. The objective and the means to achieve the objective constitute the common design or plan."[120]

According to SCSL Trial Chamber the "common purpose" must be inherently criminal by purpose,^[122] but this opinion was considered too narrow by the Appeals Chamber, which held that:

"The Appeals Chamber holds that the common purpose of the joint criminal enterprise was not defectively pleaded. By analying Kvočka et al., Haradinaj et al. and Rome Statute considered the Appeal Chamber that although the objective of gaining and exercising political power and control over the territory of Sierra Leone may not be a crime under the Statute, the actions contemplated as a means to achieve that objective are crimes within the Statute."[121]

"[…] this holding neither ‘conflate[s] objective and means’ nor sets out a legal requirement that they be ‘inextricably and necessarily’ linked."[122]

M.1.2.4. ICC

In Lubanga, the Pre-Trial Chamber stated that:

that the co-perpetrators (a) are awake of the risk that implementing the common plan (which is specifically directed at the achievement of a non-criminal goal) will result in the commission of the crime , and (b) accept such an outcome."[123]

Additionally, the Chamber concretises, that the agreement of the co-perpetrators:

"[…] need not be explicit and that its existence can be inferred from the subsequent concerted action of the co-perpetrators."[124]

In Bemba Gombo, the Pre-Trial Chamber held that:

"In the view of the Chamber, criminal responsibility under the concept of coperpetration requires the proof of two objective elements: (i) the suspect must be part of a common plan or an agreement with one or more persons; […]"[125]

It was held by the Pre-Trial Chamber in Abakaer Nourain and Jerbo Jamus:

"The first objective requirement of co-perpetration based on joint control over the crime is the existence of an agreement or common plan between two or more persons who physically carry out the elements of the crime. The common plan must include an element of criminality. Such a plan does not need to be explicit as its existence can be inferred from the subsequent concerted action of the co-perpetrators."[126]

The Abu Garda Pre-Trial Chamber reasoned that:

"In the view of the Chamber, the objective requirements common to both co-perpetration (or ‘direct’ co-perpetration) and indirect co-perpetration based on the notion of joint control over the crime are: (a) the existence of an agreement or common plan between two or more persons; […]"[127]