655. In any event, the Appeals Chamber considers that JCE counsel advance no cogent reason[1] why it should depart from its holding that “the Statute provides, albeit not explicitly, for joint criminal enterprise as a form of criminal liability”.[2] First, they do not address the teleological interpretation of the Statute as applied by the Tribunal that extends jurisdiction over all those responsible for serious violations of international humanitarian law, including those who did not actually carry out the actus reus of the crimes, and that this may amount to “committing” under Article 7(1) of the Statute. Second, the fact that Articles 7(2) and 7(3) of the Statute apply to government officials and others who might be removed from the actual crime does not mean that these persons are exempted from other forms of liability under the Statute. Indeed, quite the contrary to JCE counsel’s claim, the Secretary-General’s Report explicitly called for individual criminal responsibility for “all persons who participate” in the planning, preparation or execution of crimes under the Statute.[3] As such, there is also no merit to JCE counsel’s argument that JCE “circumvents” Article 7(3) of the Statute. Finally, because JCE does not go beyond the Statute and forms part of custom as explained below, JCE counsel’s claim that the Judges “created” this form of liability fails.

659. The Appeals Chamber recalls that it provided a detailed reasoning for inferring the grounds for conviction in the WWII cases it cited in Tadić.[4] JCE counsel do not address this reasoning. The Appeals Chamber further recalls that both the Einsatzgruppen and Justice cases show that JCE apply to large-scale cases,[5] and that JCE is legally distinct from conspiracy and organisational liability.[6] JCE counsel address neither one of these holdings. Their further claim that the Tadić Appeals Chamber “molded” precedent to convict the accused is unsubstantiated. This sub-ground is dismissed.

662. The Appeals Chamber has consistently held that participation in a JCE is a form of “commission” under Article 7(1) of the Statute.[7] Although the facts of a given case might establish the accused’s liability under both JCE and other forms of liability under Article 7(1), the legal elements of JCE distinguish it from these other forms. In the first place, none of the other forms require a plurality of persons sharing a common criminal purpose. Moreover, whereas JCE requires that the accused intended to participate and contribute to such a purpose,[8] an accused may be found responsible for planning, instigating or ordering a crime if he intended that the crime be committed or acted with the awareness of the substantial likelihood that a crime would be committed.[9] In terms of actus reus, planning and instigating consists of acts “substantially contributing” to the perpetration of a certain specific crime[10] and ordering means “instructing” a person commit an offence.[11] By contrast, JCE requires that the accused contributes to the common purpose in a way that lends a significant contribution to the crimes.[12] The differences between JCE and aiding and abetting are well-established and need not be repeated here.[13] JCE counsel’s argument that JCE renders the other forms of liability under the Article 7(1) nugatory is thus without merit.

669. As a preliminary matter, the Appeals Chamber notes that Krajišnik did not challenge but, in fact, expressly recognised at trial that the fact that Tadić was rendered after his alleged acts took place does not lead to a conflict between JCE and the nullum crimen sine lege principle.[14] Therefore, as far as JCE counsel now argue that the Tadić Appeal Judgement violated that principle, Krajišnik may be deemed to have waived his right to bring this challenge on appeal.[15] In any event, JCE counsel fail to address the jurisprudence holding that the notion of JCE as established in Tadić does not violate the nullum crimen sine lege principle.[16]

670. Regarding JCE counsel’s challenge that the alleged “expansion” of JCE after Tadić violates the principle, which challenge Krajišnik did raise at trial,[17] the Appeals Chamber first recalls that when it interprets the JCE doctrine, it does not create new law. Instead, similarly to other provisions under the Statute, it merely identifies what the proper interpretation of that doctrine has always been, even though not previously expressed that way.[18] This does not contravene the nullum crimen sine lege principle, which

“does not prevent a court from interpreting and clarifying the elements of a particular crime.” Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.[19]

671. Turning to the present case, the Appeals Chamber notes that, although Tadić concerned a relatively low-level accused, the legal elements of JCE set out in that case remain the same in a case where JCE is applied to a high-level accused. Therefore, JCE counsel are wrong to speak about an “expansion” of JCE to cases such as the one of Krajišnik. Moreover, the Appeals Chamber considers that, while pronounced in relation to acts allegedly committed in 1999, its holding in the Ojdanić Decision on Joint Criminal Enterprise applies also to Krajišnik in this case:

Article 26 of the Criminal Law of the Federal Republic of Yugoslavia, coupled with the extensive state practice noted in Tadić, the many domestic jurisdictions which provide for such a form of liability under various names and which forms of liability run parallel to custom, and the egregious nature of the crimes charged would have provided notice to anyone that the acts committed by the accused […] would have engaged criminal responsibility on the basis of participation in a joint criminal enterprise.[20]

672. JCE counsel’s additional argument that the imposition of JCE liability is vulnerable to political influence is unsupported and dismissed. This sub-ground is dismissed.

See also Judge Shahabuddeen’s Separate Opinion annexed to the Appeals Judgement.