1615. The Appeals Chamber recalls that it has previously held that the participation of an accused in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] Moreover, it has previously held that “the fact that [the] participation [of an accused] amounted to no more than his or her ‘routine duties’ will not exculpate the accused”.[2] […]

1177. The jurisprudence of the Tribunal has held that, in order for an accused to be held responsible for a crime committed pursuant to JCE liability, it must be established that he or she performed “acts that in some way [were] directed to the furthering of the common plan or purpose” of the JCE.[1] In this regard, the Appeals Chamber recalls its conclusion that the Trial Chamber’s finding that a common purpose existed beyond reasonable doubt “during the time of the crimes alleged in the Indictment”[2] concerned the period starting from 24 March 1999.[3] The Appeals Chamber further notes that, based on the Trial Chamber’s findings, both the arming of the non-Albanian population and the disarming of the Kosovo Albanian population were carried out earlier than 24 March 1999.[4] Moreover, the Trial Chamber’s finding on Pavković’s involvement in the process of arming and disarming was based on evidence concerning his conduct in 1998.[5] In these circumstances, it was unreasonable for the Trial Chamber to find that Pavković “acted […] to further the common purpose” through his enthusiastic involvement in, and support for, the process of arming and disarming and thereby finding that he contributed to the common purpose of the JCE prior to its existence.[6]

See also paras 1178, 1445.

215. The Appeals Chamber recalls that the participation of an accused person in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] The contribution need not be necessary or substantial, but it should at least be a significant contribution to the crimes for which the accused is found responsible.[2]

218. […] Moreover, the fact that it was not criminal to be involved in the setting up of SDS structures is irrelevant: as explained above, the participation of an accused in the JCE need not involve the commission of a crime, what is important is that it furthers the execution of the common objective or purpose involving the commission of crimes.[3] […].

675. The Trial Chamber held that a contribution of the accused to the JCE need not, as a matter of law, be substantial.[4] The Appeals Chamber agrees and rejects JCE counsel’s contention to the contrary. It also recalls that the accused’s contribution to the crimes for which he is found responsible should at least be significant.[5] As such, JCE counsel is wrong to suggest that JCE criminalises the mere holding of beliefs supportive of crimes.

676. 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]”.[6] However, its application of this exception to Zoran Žigić was strictly confined to the facts of that case.[7] Therefore, Kvočka et al. does not represent the broad legal recognition of a substantiality requirement JCE counsel allege.

680. The Appeals Chamber in Kvočka et al. held that, “[i]n practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.”[8] This, however, does not amount to a legal requirement that the Trial Chamber take the significance ‑ or, in the words of JCE counsel, the “substantiality or nature” ‑ of an accused’s contribution into account in assessing his intent. That assessment is more a matter of evidence than of substantive law. In any case, the Trial Chamber did note the significance of Krajišnik’s contribution in concluding on his mens rea.[9] It did not err in doing so.

695. The Appeals Chamber finds that contrary to JCE counsel’s allegation, the Trial Chamber did not find that the political activities of Krajišnik formed the actus reus of any of the crimes against humanity of which he was convicted. Instead, Krajišnik was convicted for crimes for which he was found criminally responsible under the mode of liability of JCE, which requires that the defendant “has made a significant contribution to the crime’s commission.”[10] The Tribunal’s jurisprudence does not require such contribution to be criminal per se. Indeed, the Appeals Chamber has explicitly held that the contribution “need not involve commission of a specific crime” under the Statute.[11] Moreover, the Appeals Chamber has repeatedly found that contribution to a JCE “may take the form of assistance in, or contribution to, the execution of the common purpose,”[12] and that it is not required that the accused physically committed or participated in the actus reus of the perpetrated crime.[13] It is sufficient that the accused “perform acts that in some way are directed to the furthering” of the JCE[14] in the sense that he significantly contributes to the commission of the crimes involved in the JCE. For these reasons, the Appeals Chamber holds that the contribution to a JCE need not, in and of itself, be criminal. JCE counsel’s claim to the contrary is dismissed.

696. JCE counsel further assert that Krajišnik’s speeches cannot, as a matter of law, constitute a contribution to a JCE, because they were protected under his right to freedom of speech.[15] The Appeals Chamber disagrees. What matters in terms of law is that the accused lends a significant contribution to the commission of the crimes involved in the JCE.[16] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to the common purpose. Within these legal confines, the question of whether the accused contributed to a JCE is a question of fact to be determined on a case-by-case basis.[17] As JCE counsel’s present argument is limited to a question of law, the Appeals Chamber need not address it further.

109. The Appeals Chamber considers that Stanišić’s argument that the Trial Chamber failed to apply the correct legal standard to his “purported omissions”[1] is based on the premise that each failure to act assessed in the context of joint criminal enterprise liability must, per se, meet the legal conditions set out in the Tribunal’s case law in relation to commission by omission. In this respect, the Appeals Chamber recalls that although participation in a joint criminal enterprise – which is based on an accused’s significant contribution to the common criminal purpose – is a form of “commission” under Article 7(1) of the Statute, this is a mode of liability distinct from commission by omission and is characterised by different objective and subjective elements.[2]

110. In this respect, the Trial Chamber properly held that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[3] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4] 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.[5] Furthermore, the Appeals Chamber recalls that the relevant 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.[6] That is, one’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs acts (or fails to perform acts) that in some way contribute significantly to the furtherance of the common purpose.[7] In light of the above, contrary to Stanišić’s assertion, when establishing an accused’s participation in a joint criminal enterprise through his failure to act, the existence of a legal duty to act deriving from a rule of criminal law is not required.[8] The nature of the accused’s duty and the extent of his ability to act are simply questions of evidence and not determinative of joint criminal enterprise liability.[9]

111. In the present case, as part of its factual determination of Stanišić’s contribution to the JCE, the Trial Chamber considered, together with his other actions,[10] his failure to discipline the RS MUP personnel who had committed crimes and to protect the civilian population,[11] despite his duties to do so, together with his ability, as the highest authority, to investigate and punish those who had committed crimes.[12] The Appeals Chamber observes that in the jurisprudence of the Tribunal, a failure to intervene to prevent recurrence of crimes or to halt abuses has been taken into account in assessing an accused’s contribution to a joint criminal enterprise and his intent where the accused had some power and influence or authority over the perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.[13] Therefore, Stanišić has not shown that the Trial Chamber applied an erroneous legal standard when it considered instances of his failures to act in assessing whether he contributed to the JCE.

[…]

733. Turning to Župljanin’s arguments in relation to his capacity or ability to act, based on the same reasoning, the Appeals Chamber finds no merit in Župljanin’s attempt to conflate the Appeals Chamber’s statement that the objective element of commission by omission requires, at a minimum, an “elevated degree of ‘concrete influence’”,[14] with the significant contribution requirement of joint criminal enterprise liability.[15] For the same reason, the Appeals Chamber dismisses Župljanin’s argument that the Trial Chamber failed to make findings or particularised findings as to whether “he had such a high degree of control over his subordinates that his ‘omission’ could count as part of the actus reus of commission”.[16]

See also paras 731-732, 734.

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.

[…]

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]