99. As to the substantive elements for establishing joint criminal enterprise liability, the Trial Judgement’s section on the “Law on the forms of liability charged” correctly sets out the requirements for joint criminal enterprise liability as defined in the Tribunal’s jurisprudence.[1] When examining the participation of the three Accused in a joint criminal enterprise, the Trial Chamber held that

[i]n the absence of evidence demonstrating that a group of individuals, whose identities could be established at least by reference to their category as a group, in the sense identified in the jurisprudence, furthered a common plan, and, given the lack of evidence as to the scope of any such plan, the principal elements of joint criminal enterprise have not been established.[2]

A plain reading of this finding is that the Trial Chamber was not satisfied that the Prosecution had adduced sufficient evidence of the identity of the alleged participants in the joint criminal enterprise to establish a plurality of persons sharing a common plan existed. Thus, the Appeals Chamber is not satisfied that the Trial Chamber applied an erroneously narrow approach to the legal requirement of “identification” as argued by the Prosecution.

104. […] While the Appeals Chamber found that “[t]he principal perpetrators of the crimes constituting the common purpose […] should […] be identified as precisely as possible”,[3] it held that it was sufficient for such an identification to establish that the principal perpetrators were “civilian and military authorities and/or guards and soldiers present at KP Dom”.[4] Similarly, in Vasiljević, the Appeals Chamber accepted the finding of the Trial Chamber that a joint criminal enterprise to commit persecution existed, although two out of the three participants of the joint criminal enterprise were unidentified men.[5] In Krstić, the Appeals Chamber accepted the finding of the Trial Chamber that a joint criminal enterprise to commit genocide existed, although “the Trial Chamber did not identify individual members of the Main Staff of the VRS as the principal participants in the genocidal enterprise”.[6] By the same token, the Appeals Chamber held in Stakić that the participants in the joint criminal enterprise “included the leaders of political bodies, the army, and the police who held power in the Municipality of Prijedor”, without further identification.[7] In addition, in Brđanin, the Appeals Chamber found that while a Chamber must “identify the plurality of persons belonging to the JCE […] it is not necessary to identify by name each of the persons involved”.[8] In light of these findings, the Appeals Chamber is satisfied that no reasonable trier of fact could have found that it was impossible “to determine the identity of those involved in the operation of the prison camp, apart from the Accused Haradin Bala”.[9] […]