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Element:

M.2. The perpetrator provided an essential contribution to the common plan involving the commission of the crime.

M.2.1 Co-ordination and division of essential tasks among the co-perpetrators.

M.2.1.1. ICTY

The Kvočka et al.Trial Chamber stated that:

"The precise threshold of participation in joint criminal enterprise has not been settled, but the participation must be ‘in some way […] directed to the furthering of the common plan or purpose&#x92."[1]

In Vasiljević, theTrial Chamber explained:

"If the agreed crime is committed by one or other of the participants in a joint criminal enterprise such as has already been discussed, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission."[2]

The Trial Chamber in Stakić stated that:

"A person may participate in a joint criminal enterprise in various ways: (i) by personally committing the agreed crime as a principal offender; (ii) by assisting or encouraging the principal offender in committing the agreed crime as a co-perpetrator who shares the intent of the joint criminal enterprise; (iii) by acting in furtherance of a particular system in which the crime is committed by reason of the accused’s position of authority or function and with knowledge of the nature of that system and intent to further it."[3]

Furthermore, that Chamber held that:

"Provided the agreed crime is committed by one of the participants in the joint criminal enterprise, all the participants are equally guilty of the crime regardless of the role each played in its commission."[4]

In Krnojelac, the Appeals Chamber stated that:

"The Appeals Chamber [in Tadić ] [required proof, among other things, of]: 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."[5]

"The Appeals Chamber notes that, in accordance with its decision in the Tadić Appeals Judgement, once a participant in a joint criminal enterprise shares the intent of that enterprise, his participation may take the form of assistance or contribution with a view to carrying out the common plan or purpose. The party concerned need not physically and personally commit the crime or crimes set out in the joint criminal enterprise."[6]

"The Appeals Chamber considers that the presence of the participant in the joint criminal enterprise at the time the crime is committed by the principal offender is not required either for this type of liability to be incurred."[7]

The Simić, Tadić and Zarić Trial Chamber held that:

"A joint criminal enterprise requires, in addition to a showing that several individuals agreed to commit a crime, that the parties to the agreement took action in furtherance of that agreement."

"[The Appeals Chamber in Krnojelac] also confirmed that presence at the time of the crime is not necessary. A person can still be held liable for criminal acts carried out by others without being present – all that is necessary is that the person forms an agreement with others that a crime will be carried out."[8]

The Appeals Chamber in Vasiljević was of the opinion that:

"[T]he Appellant challenges the Trial Chamber’s finding that, if the agreed crime is committed by one or more of the participants in a joint criminal enterprise, all of the participants are equally guilty of the crime regardless of the part played by each in its commission."

"The Appeals Chamber recalls that the case-law of the Tribunal stemming from the Tadić Appeals Judgement and the Ojdanic Decision regards participation in a joint criminal enterprise as a form of commission. In light of this established case-law, the Appeals Chamber finds that the Appellant has not established that the Trial Chamber erred in finding all of the participants in the joint criminal enterprise to be equally guilty of the crime regardless of the part played by each in its commission."[9]

It was held by the Trial Chamber in Babic that:

"The position of political leader is not required for participation in a [joint criminal enterprise], nor is it a precondition for the crime of persecution. Thus it is not an element establishing criminal liability, and the Trial Chamber has not considered it as such in determining Babic’s criminal responsibility. The latter stems from his conduct of contributing to the furtherance of the objective of the [joint criminal enterprise] through the crime of persecution. Thus, the submission of the Defence does not prevent the Trial Chamber from taking into consideration Babic’s leadership positions as an aggravating circumstance."[10]

In Brdjanin, the Trial Chamber argued that:

"An accused’s involvement in the criminal act must form a link in the chain of causation. This means that the Prosecution must at least establish that the accused took action in furtherance of the criminal plan. However, it is not necessary that the participation be a conditio sine qua non, or that the offence would not have occurred but for the accused’s participation."[11]

The Blagojević and Jokić Trial Chamber held that:

"To find individual criminal responsibility pursuant to a joint criminal enterprise in any of the three categories, [there must be proven, inter alia,] […] the participation of the accused in the common plan involving the perpetration of one of the crimes provided for in the Statute."[12]

Additionally, that Chamber stated that:

"The Trial Chamber concurs with the Trial Chamber in the Brdjanin case that while the participation of the accused need not be a conditio sine qua non for the commission of the offence, the accused’s involvement in the criminal act must form a link in the chain of causation."[13]

In Kvočka et al., the Appeals Chamber held:

"‘Third, the participation of the accused in the common purpose is required […]’."[14]

The Chamber also stated that:

"A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadić Appeals Chamber explained, ‘[a]lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question.’ This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case."[15]

"[C]ontrary to Kvočka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose. The Appeals Chamber finds that the Trial Chamber did not err in finding Kvočka guilty of the crime of murder without establishing his specific responsibility for each murder committed."[16]

Furthermore, it was held that:

"The Appeals Chamber notes that, in general, there is no specific legal requirement that the accused make a substantial contribution to the joint criminal enterprise. However, there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the joint criminal enterprise."[17]

"In practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose."[18]

However, the Kvočka et al. Appeals Chamber also stated that:

"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. 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."[19]

"The Appeals Chamber agrees that the Prosecutor need not demonstrate that the accused’s participation is a sine qua non, without which the crimes could or would not have been committed. Thus, the argument that an accused did not participate in the joint criminal enterprise because he was easily replaceable must be rejected."[20]

"In another related argument, Appellant Radic submits that he should not be found guilty as a coperpetrator since the Trial Chamber acquitted him of all charges based on superior responsibility. The suggestion implicit in this argument is that a person lacking sufficient authority to be considered a superior would necessarily also lack sufficient authority to make a ‘significant contribution’ to a systemic joint criminal enterprise. The Appeals Chamber notes that participation in a joint criminal enterprise pursuant to Article 7(1) of the Statute and superior responsibility pursuant to Article 7(3) of the Statute are distinct categories of individual criminal responsibility, each with specific legal requirements. Joint criminal enterprise responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution."[21]

"Although a de jure or de facto position of authority is not a material condition required by law under the theory of joint criminal enterprise, the Appeals Chamber stresses that it is a relevant factor in determining the scope of the accused’s participation in the common purpose."[22]

"The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved. Nor is the participant in a joint criminal enterprise required to be physically present when and where the crime is being committed."[23]

"While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence."[24]

"The Appeals Chamber has stated that the accused’s participation in carrying out the joint criminal enterprise is likely to engage his criminal responsibility as a co-perpetrator, without it being necessary in general to prove the substantial or significant nature of his contribution: it is sufficient for the accused to have committed an act or an omission which contributes to the common criminal purpose. Contrary to the holding of the Trial Chamber, the Tribunal’s case-law does not require participation as co-perpetrator in a joint criminal enterprise to have been significant, unless otherwise stated. A fortiori, contrary to Kvočka’s submissions, such participation need not be ‘direct or significant.’ Kvočka’s arguments are thus rejected on this point."[25]

"Kvočka replies that since the Prosecution accepts that the killing of [Ahil] Dedic occurred a few hours before he arrived at the camp for the first time, he should not be held responsible for the murder."[26]

"The Appeals Chamber holds that since the Trial Chamber provided no detailed information or convincing factual basis, it has not been proved that the murder of Ahil Dedic was committed after Kvočka's arrival in Omarska camp, the time limit set by the Trial Chamber on Kvočka's responsibility. The Appeals Chamber grants this ground of appeal and finds that the Trial Chamber erred in finding Kvočka guilty of the murder of Ahil Dedic."[27]

"[Kvočka] contends that he had no authority as a security service member to influence or improve the conditions of detention, including the quality and quantity of water and food, conditions that were recognized by the Trial Chamber as elements of torture."[28]

"When assessing the responsibility of an accused for crimes committed as part of a joint criminal enterprise, it is not a matter of determining what the accused could have done but what he did do to contribute to the joint criminal enterprise. That Kvočka was unable to improve the conditions of detention is of no consequence to his criminal responsibility since his contribution to the joint criminal enterprise encompassing the crimes resulting from the conditions of detention has been established."[29]

"Equally without merit is Radic’s argument that he cannot be held responsible for crimes he was unable to prevent because of the chaotic situation in the camp. The Trial Chamber found that the Omarska camp functioned as a joint criminal enterprise, and that Radic knowingly and substantially contributed to the functioning of the camp. Once the Trial Chamber had established these facts, the conclusion that Radic was responsible for the crimes committed during his participation in the joint criminal enterprise was correct, regardless of his power to prevent individual crimes. Unlike the position under Article 7(3) of the Statute, responsibility for participation in a joint criminal enterprise under Article 7(1) of the Statute does not require proof that the perpetrator has the authority to prevent the crimes. Radic is responsible not because he did not prevent the crimes in question, but because he supported and furthered a criminal enterprise which allowed individuals to maltreat detainees at will."[30]

"Kvočka submits that the Trial Chamber held that he was not responsible for crimes committed in the period when he was absent from the [Omarska] camp and, therefore, it should have considered his work schedule in the camp to take into account his days off."[31]

Rejecting this argument:

"The Appeals Chamber […] notes that it has already determined that the Trial Chamber did not limit Kvočka's responsibility to the period he was physically present in the camp but held him responsible for crimes committed in the camp from about 29 May to 23 June 1992, i.e., during the time that he was employed in the camp."[32]

"[I]t is, in general, not necessary to prove the substantial or significant nature of the contribution of an accused to the joint criminal enterprise to establish his responsibility as a co-perpetrator: it is sufficient for the accused to have committed an act or an omission which contributes to the common criminal purpose."[33]

However, in Simić, Tadić and Zarić, the Trial Chamber stated that:

"The Trial Chamber in Kvočka held that the degree of participation required must be ‘significant,’ i.e. make an enterprise ‘efficient or effective’[.]"[34]

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

"The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons."[35]

"[T]he Appeals Chamber considers that the title of administrative aide used by the Trial Chamber to describe [Prcac] is not material to the finding that he was a co-perpetrator in a joint criminal enterprise. The Trial Chamber did not consider the fact of being an administrative aide to be indicative of criminal responsibility. The title itself was given only to sum up his duties, which were different from those of the other guards or their superiors. The Trial Chamber correctly assigned responsibility on the basis of Prcac’s actual duties rather than on the basis of a mere descriptive label."[36]

In Babic, the Appeals Chamber stated that:

"Co-perpetratorship in a joint criminal enterprise, for which the Appellant was found guilty, only requires that the accused shares the mens rea or ‘intent to pursue a common purpose’ and performs some acts that ‘in some way are directed to the furtherance of the common design’."[37]

The Trial Chamber in Limaj et al. argued that:

"With regard to the different crimes committed against different detainees in the camp, it cannot be ruled out on the available evidence that some of the perpetrators of the crimes established in, or in connection with, the prison camp did so merely as visitors who came to the camp on an ad hoc basis and while there, for personal reasons, such as revenge, mistreated or killed old enemies. It is true that such ‘opportunistic visitors’ could also have become participants in the alleged joint criminal enterprise by contributing to the overall effect of the prison camp. However, in order to prove their participation it would be necessary to establish that their contribution to the pursuance of the common purpose of the alleged joint criminal enterprise was substantial."[38]

In Martić, it was held by the Trial Chamber that:

"The requirement of participation for both forms of JCE is satisfied when the accused assisted or contributed to the execution of the common purpose. The accused need not have performed any part of the actus reus of the perpetrated crime. It is also not required that his participation be necessary or substantial to the crimes for which the accused is found responsible. Nevertheless, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[39]

The Haradinaj et al. Trial Chamber stated that:

"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 forges a group out of a mere plurality. In other words, the persons in a criminal enterprise must be shown to act together, or in concert with each other, in the implementation of a common objective, if they are to share responsibility for crimes committed through the JCE."[40]

In Boskoski and Tarculovski, the Trial Chamber held that:

"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, and not every type of conduct amounts to a sufficiently significant contribution to the common purpose to impute criminal liability to the accused for crimes committed. The presence of the participant in the JCE at the time the crime is committed by the principal offender is not required."[41]

The Trial Chamber in Popovic et al. argued that:

"An accused may contribute to and further the common purpose of the JCE by various acts, which need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all. While a crime must have been committed for liability through JCE to ensue, the Prosecutor need not demonstrate that the accused’s participation is a sine qua non, without which the crime could or would not have been committed. There is no requirement that the accused is present at the time and place of perpetration of the crime. The Appeals Chamber has held that, for liability for participation in a JCE, it suffices that an accused perform acts ‘that in some way are directed to the furthering of the common plan or purpose.’ The participation or contribution of an accused to the common purpose need not be substantive, but "it should at least be a significant contribution to the crimes for which the accused is found responsible."[42]

M. 2.1.2. ICTR

There were no judgments rendered on that issue, yet.

M. 2. 2. Essential contribution by co-perpetrators.

M.2.2.1 ICTY

In Tadić, the Appeals Chamber stated:

"[T]o hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility."[43]

In Brđ;anin the Appeal Chamber determined that the actual perpetrator does not have to be a member of JCE. With regard to the first type of JCE:

"In light of the above discussion of relevant jurisprudence, persuasive as to the ascertainment of the contours of joint criminal enterprise liability in customary international law, the Appeals Chamber is of the view that what matters in a first category JCE is not whether the person who carried out the actus reus of a particular crime is a member of the JCE, but whether the crime in question forms part of the common purpose. 889 In cases where the principal perpetrator of a particular crime is not a member of the JCE, this essential requirement may be inferred from various circumstances, including 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. 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 the person in question knows of the existence of the JCE – without it being established that he or she shares the mens rea necessary to become a member of the JCE – may be a factor to be taken into account when determining whether the crime forms part of the common criminal purpose. However, this is not a sine qua non for imputing liability for the crime to that member of the JCE."[44]

As for the third type of JCE:

"When the accused, or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is 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. As the Prosecution recognizes, for it to be possible to hold an accused responsible for the criminal conduct of another person, there must be a link between the accused and the crime as legal basis for the imputation of criminal liability. According to the Prosecution, this link is to be found in the fact that the members of the joint criminal enterprise use the principal perpetrators as "tools" to carry out the crime.[…] 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. The existence of this link is a matter to be assessed on a case-by-case basis."[45]

Besides, in Brđ;anin Appeal Judgment, it was held that:

"However, the Appeals Chamber does not consider that any form of JCE liability requires an additional understanding or agreement to commit that particular crime between the accused and the principal perpetrator of a crime.[…] The Appeals Chamber recalls that, as far as the basic form of JCE is concerned, 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. In cases where the principal perpetrator shares that common criminal purpose of the JCE or, in other words, is a member of the JCE, and commits a crime in furtherance of the JCE, it is superfluous to require an additional agreement between that person and the accused to commit that particular crime. In cases where the person who carried out the actus reus of the crime is not a member of the JCE, the key issue remains that of ascertaining whether the crime in question forms part of the common criminal purpose. This is a matter of evidence."[46]

"The Appeals Chamber considers that not every type of conduct would amount to a significant enough contribution to the crime for this to create criminal liability for the accused regarding the crime in question,"[47]

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

"The common objective[which amounts to or involves the commission of a crime provided for in the Statute] need not have been previously arranged or formulated. 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"."[48]

"Participation of the accused in the objective’s implementation… is chieved 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. 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."[49]

"The persons in a criminal enterprise must be shown to act together, or in concert with each other, in the implementation of a common objective, if they are to share responsibility for crimes committed through the JCE."[50]

In Popović et al., the Trial Chamber found that:

"The Accused’s involvement in, and use of the convoy approval and notification procedure to create the conditions for forcible transfer, constituted an additional contribution to the common purpose of the JCE."[51]

M.2.2.2. ICTR

ICTR also took the forms of participation into consideration:

"[…] Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose."[52]

"[…]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."[53]

However, in Simba Appeal Judgment ICTR also emphasized that:

"The Appeals Chamber recalls that although an accused’s contribution to a JCE need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is found to be responsible."[54]

By citing Limaj et al., Judgment and Brđ;anin Judgment, the ICTR is of the opinion that:

"[T]he principal perpetrators carrying out the actus reus of the crimes 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."[55]

In Mpambara Trial Judgment, the ICTR held that:

"Any act or omission which assists or contributes to the criminal purpose may attract liability: there is no minimum threshold of significance or importance, and the act need not independently be a crime."[56]

In Nchamihigo Trial Judgment, the Court is of the opinion that:

"[T]he accused’s participation need not involve the commission of a specific crime, but may take the form of assistance in, or contribution to, the execution of the common purpose."[57]

Considering the Accused’s position of Authority, the Accused could significantly contribute to JCE by:

"[H]is arrival at the site with the assailants, his speech to the assailants, and his presence when the attack commenced, would have demonstrated support for the attack and thus, amounted to a form of encouragement to the assailants."[58]

M. 2.2.3. SCSL

M.2.2.3.1 Contribution to and the nexus of the commission of JCE

In Sesay, Kallon and Gbao, the Appeal Chamber held that:

"The Appeals Chamber notes that JCE liability does not require that the accused performed any part of the actus reus of the perpetrated crime. Rather, what is required is that the accused participated in the common criminal purpose and thereby lent "a significant contribution to the crimes for which the accused is to be found responsible"."[59]

"We further recall the findings in the Tadic case that ‘while the defendant’s involvement in the criminal acts must form a link in the chain of causation, it was not necessary that this participation be a sine qua non, or that the offence would not have occurred but for his participation’."[60]

As for the nexus between the ideology and the committed crime, SCSL in Sesay, Kallon and Gbao Trial Judgment stated that:

"The Chamber concedes that holding a revolutionary idea or an ideology to change a system as the RUF and Gbao did in this case, does not, in itself, amount to or constitute a crime. However, we are of the opinion that where the evidence establishes that there is a criminal nexus between such an ideology and the crimes charged and alleged to have been committed, the perpetrators of those crimes should be held criminally accountable under the rubric of a joint criminal enterprise for the crimes so alleged in the Indictment. We recall the Simic Trial Judgment where the accused was held responsible for participating in a joint criminal enterprise for providing the ‘legal, political and social framework in which the participants of the JCE worked and from which they profited’."[61]

Furthermore, the Chamber argued that:

"an accused may be found criminally responsible for his participation in the enterprise, even if his significant contributions to the enterprise occurred only in a much smaller geographical area, provided that he had knowledge of the wider purpose of the common design."[62]

M.2.2.3.2 Commission of JCE

According to the Trial Chamber in Fofana and Kondewa, JCE can be committed by using non-JCE members in furtherance of the common purpose:

"the principal perpetrator need not be a member of the joint criminal enterprise, but may be used as a tool by one of the members of the joint criminal enterprise."[63]

"As Brđ;anin makes clear, this standard applies also where the accused participates in the JCE by way of using non-JCE members to commit crimes in furtherance of the common purpose."[64]

Based on the Krajišnik Appeal Judgment and Brđ;anin Appeal Judgment, SCSL in Sesay, Kallon and Gbao Appeal Judgment held that:

" the link between the crimes of the principal perpetrators and a member of the JCE, required to impute those crimes to the latter, is a matter to be assessed on a case-by-case basis."[65]

"The Accused person does not need to have been present at the time of the crime."[66]

In Sesay, Kallon and Gbao the Appeals Chamber was of the opinion that:

"While evidence of the number of crimes committed in a certain area may be relevant to the assessment of whether a JCE existed, it is not determinative thereof. […] Factors such as the geographic proximity of various crimes, their similar modus operandi and their widespread and systematic nature are also to be considered."[67]

M. 2.2.4. ICC

In Lubanga, the Chamber held that: (Confirmation Decision), January 29, 2007, para. 338:

"Not having accepted the objective and subjective approaches for distinguishing between principals and accessories to a crime, the Chamber considers, […] unlike the jurisprudence of the ad hoc tribunals, that the Statute embraces the third approach, which is based on the concept of control over the crime."[68]

Concerning the concept of control, the Chamber stated that:

"[…] principals to a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed."[69]

they have, along with others, control over the offence by reason of the essential tasks assigned to him (commission of the crime jointly with others, or co-perpetration)."[70]

In Lubanga, the Pre-Trial Chamber held that:

"In the view of the Chamber, when the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned – and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks – can be said to have joint control over the crime. The Chamber observes that, although some authors have linked the essential character of a task – and hence the ability to exercise joint control over the crime – to its performance at the execution stage of the crime, the Statute does not contain any such restriction."[71]

The Bemba Gombo Pre-Trial Chamber stated that:

"In the view of the Chamber, criminal responsibility under the concept of coperpetration requires the proof of two objective elements: […] (ii) the suspect and the other co-perpetrator must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime."[72]

In Abakaer Nourain and Jerbo Jamus, the Pre-Trial Chamber was of the view that:

"The second objective requirement of co-perpetration based on joint control over the crime is that the co-ordinated essential contributions made by each co-perpetrator must result in the realisation of the objective elements of the crime. When the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned can be said to have joint control over the crime. Those who have taken part in the commission of a crime by performing tasks which are not essential to the offence cannot be considered as having "committed" the crime. A person has been assigned an essential task if he or she has the power to frustrate the commission of the crime, in the way it was committed, by not performing his or her tasks."[73]

In Abu Garda, the Pre-Trial Chamber held 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: […] (b) the co-ordinated essential contribution by each co-perpetrator resulting in the realization of the objective elements of the crime."[74]

Footnotes:

[3] ICTY, Stakić Trial Judgment 31 July 2003, para. 435. See also ICTY, Vasiljević Trial Judgment 29 November 2002, para. 67 (similar).

[5] ICTY, Krnojelac Appeals Judgement 17 September 2003, para. 31 (emphasis in original). See also ICTY, Tadic Appeals Judgment 15 July 1999, para. 227 (source of quoted language).

[7] ICTY, Krnojelac Appeals Judgement 17 September 2003, para. 81. See also ICTY, Limaj et al.Trial Judgment 30 November 2005, para. 511 (similar).

[12] ICTY, Blagojević and Jokić Trial Judgement 17 January 2005, para. 698. See also ICTY, Limaj et al. Trial Judgment 30 November 2005, para. 511 (similar); ICTY, Babic Trial Judgment 29 June 2004, para. 32 (similar regarding the crime of persecution); ICTY, Simić, Tadić and Zarić Trial Judgment 17 October 2003, para. 156 (similar).

[13] ICTY, Blagojević and Jokić Trial Judgement 17 January 2005, para. 702.

[14] ICTY, Kvočka et al. Appeals Judgement 28 February 2005, para. 96. See also ICTY, Vasiljević Appeals Judgment 25 February 2004, para. 100 (same); ICTY, Krnojelac Appeals Judgment 17 September 2003, para. 31.

[18] ICTY, Kvočka et al. Appeals Judgement 28 February 2005, para. 97. See also Kvočka et al. Appeals Chamber 28 February 2005, para. 188 (similar).

[20] ICTY, Kvočka et al. Appeals Judgement 28 February 2005, para. 98. See also ICTY, Kvočka et al. Appeal 28 February 2005, para. 193.

[23] ICTY, Kvočka et al. Appeals Judgement 28 February 2005, para. 112. See also ICTY, Brđanin Appeals Judgment, para. 427.

[34] ICTY, Simić, Tadić and Zarić Trial Judgement 17 October 2003, para. 159. See also ICTY, Kvočka et al Trial Judgment 2 November 2001, para. 306 (requiring "significant" participation of anyone who knowingly participates in the operation of a detention facility), rejected in ICTY, Kvočka et al. Appeals Judgment 28 February 2005, para. 187.

[39] ICTY, Prosecutor v. Martić, "Judgment", IT-95-11-T, 12 June 2007, para. 440.

[41] ICTY, Prosecutor v. Boškoski and Tarčulovski, "Judgment", IT-04-82-T, 10 July 2008, para. 395.

[42] ICTY, Popovic et al. Trial Judgement 10 June 2010, para. 1026-27. See also ICTY, Kvočka et al. Appeals Judgment 28 February 2005, para. 81, 98, 99, 187, 193.

[43] ICTY, Tadić Appeals Judgement 15 July 1999, para. 192. See also ICTY, Blagojevic and Jokic Trial Judgment 17 January 2005, para. 695.

[52] ICTR, Prosecutor v. Zigiranyirazo, "Judgement", ICTR-01-73-T, 18 December 2008, para. 383.

[53] ICTR, Simba Trial Judgment 13 December 2005, para. 386; ICTR, Renzaho Trial Judgment 14 July 2009, para. 740; ICTR, Nsengimana Trial Judgment 17 November 2009, para. 802; ICTR, Setako Trial Judgment 25 February 2010, para. 452.

[54] ICTR, Prosecutor v. Simba, "Appeals Judgment", ICTR-01-76-A, 27 November 2007, para. 303.

[55] ICTR, Prosecutor v. Zigiranyirazo, "Judgement", ICTR-01-73-T, 18 December 2008, para. 384.

[58] ICTR, Prosecutor v. Zigiranyirazo, "Judgement", ICTR-01-73-T, 18 December 2008, para. 409; in the same vein ICTR, Prosecutor v. Simba, "Appeals Judgment", ICTR-01-76-A, 27 November 2007, para. 296.

[60] SCSL, Sesay, Kallon and Gbao Trial Judgment 25 February 2009, para. 2013. See also SCSL, Sesay, Kallon and Gbao Appeals Judgment 26 October 2009, para. 401.

[63] SCSL, Fofana and Kondewa Trial Judgment 2 August 2007, para. 216. Confirmed in SCSL, Sesay, Kallon and Gbao Trial Judgment 25 February 2009, para. 263.

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