Element:

M.5. The perpetrator was aware that he provided an essential contribution to the implementation of the common plan

In Krajinik, the Trial Chamber found that:

"Participation of the accused in the objectives implementation [] is achieved by the accuseds 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 accuseds conduct may satisfy this element [of joint criminal enterprise] if it involved procuring or giving assistance to the execution of a crime forming part of the common objective. A contribution of the accused to the JCE need not have been, as a matter of law, either substantial [as found in Kvočka] or necessary to the achievement of the JCEs objective."[1]

The Appeal Chamber in Krajinik agreed that:

"a contribution of the accused to the JCE need not, as a matter of law, be substantial [but] the accuseds contribution to the crimes for which he is found responsible should at least be significant. In Kvočka et al., the Appeals Chamber held that 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 [JCE]. However, its application of this exception to Zoran Zigic was strictly confined to the facts of that case. Therefore, Kvočka et al. does not represent the broad legal recognition of a substantiality requirement JCE counsel allege."[2]

In Milutinović et al., the Trial Chamber stated that the third physical element of joint criminal enterprise is:

"whether any of the alleged members of the joint criminal enterprise [] made a significant contribution to the common purpose."[3]

[];

"Milutinović []; participate[d] in the 21 July 1998 meeting with the rest of the leadership when the Plan for Combating Terrorism was approved and the Joint Command established. He also participated in the similar meeting, on 29 October, when the results of these activities were discussed. He also gave two morale-boosting speeches to the MUP. In addition, he failed to raise certain issues during SDC meetings and generally exhibited loyalty to Miloević. In the Chambers view, however, this was not a significant contribution to the joint criminal enterprise. This is especially so in light of the jurisprudence relied upon by the Prosecution relating to omission liability, showing that his omissions must have been combined not only with his duty to act but also with authority over the physical perpetrators in question. The Chamber does not accept that Milutinović had a legal duty arising from his oath of office alone in the absence of significant de jure and de facto powers. In addition, the Chamber is not prepared to accept that the contribution by omission was significant, given Milutinovićs lack of authority over the forces that were committing the crimes in question."[4]

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

"Mugenzi and Mugiraneza substantially and significantly contributed to the common criminal purpose by agreeing to remove Butares top administrative official. Habyalimana had taken a public stand against ethnically driven killings and posed a considerable and symbolic threat to the killing of Tutsis in that region. Likewise, this decision created a platform for Sindikubwabo to ceremoniously and publicly air his inflammatory speech. Furthermore, as an additional significant and substantial contribution to the joint criminal enterprise, Mugenzi and Mugiraneza were present in Butare when the President gave his inflammatory speech. The Chamber has no doubt that their presence provided substantial moral encouragement to Sindikubwabo as he incited the killing of Tutsis and, moreover, it contributed significantly to the appearance of a unified Interim Government that supported his message."[5]