Physical perpetration

Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.

99. Appellant Kvočka appears to argue that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable.[1] The Appeals Chamber disagrees. A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadić Appeals Chamber explained, “[a]lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question.”[2] This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case.

[1] Kvočka Appeal Brief, para. 162 (“[T]he action has to be part of co-perpetration of some offense and also give its contribution to co-perpetration in the great extent”).

[2] Tadić Appeal Judgement para. 191; see also para. 192: “Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility”.

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