90. The Appeals Chamber notes that, […] it is well established that “planning” is not an element of a JCE.[1]The material element of a JCE is the “common purpose”, and it is on this basis that the Trial Chamber convicted the Appellant for his participation in a JCE. […]

611. […] the Appeal Chamber recalls that JCE liability requires the existence of “a common plan, design or purpose” amounting to, or involving the commission of a crime.[1] Such a common plan, design, or purpose may “be inferred from the facts”,[2] including events on the ground.[3] […]

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654. […] [I]n view of the magnitude of forcible displacement committed in an orchestrated manner and showing a discernible pattern as well as the extensive seizure and destruction of IDs during the forcible displacement, the Appeals Chamber is satisfied that the evidence regarding these two factors is sufficient for a reasonable trier of fact to find that the only reasonable inference is that a common purpose to forcibly displace a number of Kosovo Albanians existed.[4]

393.  [T]he Appeals Chamber recalls that an accused’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as he or she performs acts that in some way contribute to the furtherance of the common purpose.[1] Thus, in the Appeals Chamber’s view, whether Mladić’s orders were legitimate in the military context is not relevant to determining his significant contribution to the common purpose. What matters is that the accused significantly contributed to the commission of the crimes involved in the joint criminal enterprise.[2] Considering the above, Mladić’s assertion that his orders were consistent with legitimate military operations in light of the military context of Srebrenica[3] cannot serve to demonstrate an error in the Trial Chamber’s conclusion that Mladić significantly contributed to achieving the common objective.[4]

See also paras. 395, 429.

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414. The Appeals Chamber recalls that the law does not foresee specific types of conduct which per se cannot be considered a contribution to the common purpose of a joint criminal enterprise.[5] What matters is that the accused performs acts that in some way contribute to the furtherance of the common purpose.[6] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case-by-case basis.[7] Furthermore, the Appeals Chamber recalls that failures to act or acts carried out in furtherance of a joint criminal enterprise 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.[8]