M.1. A group of persons acting with a common purpose attempted or committed the crime.

M.1.1. The crime was attempted or committed

M.1.2. The crime was attempted or committed by a group of persons

M.1.3. The group of persons who attempted or committed the crime had a common purpose

M.1.4. The common purpose included an element of criminality

M.1. A group of persons acting with a common purpose attempted or committed the crime.

M.1.1. The crime was attempted or committed

M.1.2. The crime was attempted or committed by a group of persons

M.1.2.1. ICC

M.1.2.2. ICTY

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"As regards Dorđević’s second submission, the Appeals Chamber recalls that in order to conclude that persons identified as joint criminal enterprise members acted in furtherance of the joint criminal enterprise, a trial chamber is required to identify the plurality of persons belonging to the joint criminal enterprise and establish that they shared a common criminal purpose. The plurality of persons can be sufficiently identified by referring to "categories or groups of persons ", and it is not necessary to name each of the individuals involved. Furthermore, the common purpose can be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise. It is therefore not required, as a matter of law, that a trial chamber make a separate finding on the individual actions and the intent of each member of a joint criminal enterprise to establish that a plurality of persons acted together in implementing the common purpose. The Appeals Chamber therefore finds that the Trial Chamber was not required to examine the individual actions or scrutinise the intent of each member of the JCE."[1]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"With regard to Dorđević’s first submission, the Appeals Chamber emphasises that in order to conclude on the existence of a common purpose, it is not required to establish that a plurality of persons acted in unison. What is required to be established is "that a plurality of persons shared the common criminal purpose ". The existence of such a common criminal purpose, particularly one that has not been previously arranged or formulated but materialised extemporaneously, may be inferred "from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise&quot. In other words, it is not necessary to establish that joint criminal enterprise members acted in unison in order to reach a conclusion on the existence of the common purpose."

"[…] the Appeals Chamber recalls that in order to establish that a plurality of persons shared the common purpose, the Trial Chamber was not required as a matter of law to scrutinise the intention of each JCE member. Further, it was entitled to infer, as it did, that the JCE members shared the common plan based on circumstantial evidence, including the fact that they acted in unison."[2]

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that all members of a joint criminal enterprise are responsible for a crime committed by a non-member of the joint criminal enterprise if it is shown that the crime can be imputed to at least one member who acted in furtherance of the common plan when using the non-member. The establishment of the link between the crime in question and the joint criminal enterprise member is to be assessed on a case-by-case basis. As a matter of law, there is no requirement that a trial chamber demonstrate "how each physical perpetrator was used to commit the crimes" in order to establish such link, provided that the trial chamber identifies how one or more members of the joint criminal enterprise used the forces to which these physical perpetrators belonged in furtherance of the common plan."[3]

The Tadić Appeals Chamber held that:

"Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose."[4]

Regarding the differentiation between Art. 25 (c) and Art. 25 (d) ICC Statute, the Furundžija Trial Chamber held that:

"Article 25 of the Rome Statute distinguishes between, on the one hand, a person who ‘contributes to the commission or attempted commission of […] a crime by a group of persons acting with a common purpose’ where the contribution is intentional and done with the purpose of furthering the criminal activity or criminal purpose of the group or in the knowledge of the intention of the group to commit the crime", from, on the other hand, a person who, ‘for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission’. Thus, two separate categories of liability for criminal participation appear to have crystallised in international law – co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other."[5]

Regarding the group of persons the Tadić Appeals Chamber held that:

"They need not be organised in a military, political or administrative structure, as is clearly shown by the Essen Lynching and the Kurt Goebell cases."[6]

M.1.2.3. ICTR

The Zigiranyirazo Trial Chamber found that:

"The jurisprudence of both ad-hoc Tribunals establishes three categories of JCE: basic, systemic and extended. The actus reus is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. Although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[7]

The Nchamihigo Trial Chamber held that:

"JCE is not a crime but a mode of liability, for which the jurisprudence has identified three forms. The Appeals Chamber in Tadić has stated that the actus reus remains the same for each category of JCE, and requires: (i) a plurality of persons involved in the JCE, (ii) a common purpose or plan which amounts to or involves the commission of a crime provided for in the Statute, and (iii) the accused’s participation in the common purpose. The common purpose need not have been previously arranged or formulated. It may materialise extemporaneously and it can be inferred from the facts. And the accused’s participation need not involve the commission of a specific crime, but may take the form of assistance in, or contribution to, the execution of the common purpose"[8]

In the Ntakirutimana and Ntakirutimana Appeals Judgement it was held that:

The Simba Trial Chamber held that:

"According to settled jurisprudence, the required actus reus for each form of joint criminal enterprise comprises three elements. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example, murder, extermination, torture, or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose. The Appeals Chamber in Kvocka et al. provided guidance on distinguishing between joint criminal enterprise and other forms of liability, such as aiding and abetting"[9]

The Mpambara Trial Chamber held that:

"Unlike conspiracy, no specific agreement to commit the crime need be shown: the common purpose may arise spontaneously and informally, and the persons involved need not be associated through a formal organization."[10]

In the Zigiranyiazo case the Trial Chamber found that:

"The jurisprudence of both ad-hoc Tribunals establishes three categories of JCE: basic, systemic and extended. The actus reus is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. Although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[11]

M.1.2.4. SCSL

In the Taylor Appeals Judgement, the Appeals Chamber held that:

"Joint criminal enterprise, as a unique form of enterprise or common purpose liability, is particularly characterised by the legal requirement of a common criminal purpose. This common criminal purpose justifies holding an accused liable not only for his own contribution to the commission of crimes, but also for the contributions of those with whom he shares a common purpose." [12]

M.1.3. The group of persons who attempted or committed the crime had a common purpose

M.1.3.1. ICC

In the Katanga Trial Judgement, the Trial Chamber held that:

"It must first be underscored that it is a sine qua non of the application of article 25(3)(d) of the Statute that the existence of a group of persons driven by and acting with a common purpose be established. Further, the persons who committed the crime must belong to the group, whether they form all or part of it.

In defining the concerted action of the group acting with a common purpose, the Chamber will make reference to the jurisprudence of the ad hoc tribunals on joint criminal enterprise. This mode of liability, defined by the ICTY to address grave breaches of international humanitarian law, also relies on the concept of "common purpose" and is therefore of the utmost pertinence to the present analysis. The Chamber considers that it may draw on certain criteria from that jurisprudence, particularly so as to best ascertain the meaning of a statutory phrase or expression, such as the phraseology "common purpose", and in so doing, recourse to the systemic method of interpretation may be had.

Whereas modes of liability may vary from one international tribunal to another and whereas, in that sense, the Statute of the Court is an innovation whose meaning and coherence must be preserved, nothing precludes reliance in the main on the definition of the expression "common purpose" adopted by the ad hoc tribunals since, moreover, their definition is based on an analysis of customary international law. It is the Chamber’s view that definition of the criminal purpose of the group presupposes specification of the criminal goal pursued; its scope, by pinpointing its temporal and geographic purview; the type, origins or characteristics of the victims pursued; and the identity of the members of group, although each person need not be identified by name. To its mind, the group of persons acting with a common purpose may be evinced without necessarily establishing the existence of an organisation incorporated into a military, political or administrative structure. Proof that the common purpose was previously arranged or formulated is not required. It may materialise extemporaneously and be inferred from the subsequent concerted action of the group of persons."[58]

M.1.3.2. ICTY

The Tadić Appeals Chamber held that:

"In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:

A plurality of persons. They need not be organised in a military, political or administrative structure, as is clearly shown by the Essen Lynching and the Kurt Goebell cases.

The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

"Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose."[13]

Regarding the differentiation between Art. 25 (c) and Art. 25 (d) ICC Statute, the Furundžija Trial Chamber held that:

"Article 25 of the Rome Statute distinguishes between, on the one hand, a person who ‘contributes to the commission or attempted commission of […] a crime by a group of persons acting with a common purpose’ where the contribution is intentional and done with the purpose of furthering the criminal activity or criminal purpose of the group or in the knowledge of the intention of the group to commit the crime", from, on the other hand, a person who, ‘for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission’. Thus, two separate categories of liability for criminal participation appear to have crystallised in international law – co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other."[14]

Regarding common purpose the Tadić Appeals Chamber held that:

"There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise."[15]

Regarding the participation of the accused in the common design it held that:

"This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose."[16]

M.1.3.3. ICTR

The Zigiranyirazo Trial Chamber found that:

"The jurisprudence of both ad-hoc Tribunals establishes three categories of JCE: basic, systemic and extended. The actus reus is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. Although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[17]

The Nchamihigo Trial Chamber held that:

"JCE is not a crime but a mode of liability, for which the jurisprudence has identified three forms. The Appeals Chamber in Tadić has stated that the actus reus remains the same for each category of JCE, and requires: (i) a plurality of persons involved in the JCE, (ii) a common purpose or plan which amounts to or involves the commission of a crime provided for in the Statute, and (iii) the accused’s participation in the common purpose. The common purpose need not have been previously arranged or formulated. It may materialise extemporaneously and it can be inferred from the facts. And the accused’s participation need not involve the commission of a specific crime, but may take the form of assistance in, or contribution to, the execution of the common purpose"[18]

In the Ntakirutimana and Ntakirutimana Appeals Judgement it was held that:

"There is no necessity for the criminal purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. The accused’s participation in the criminal enterprise need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common purpose"[19]

The Simba Trial Chamber held that:

"According to settled jurisprudence, the required actus reus for each form of joint criminal enterprise comprises three elements. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example, murder, extermination, torture, or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose. The Appeals Chamber in Kvocka et al. provided guidance on distinguishing between joint criminal enterprise and other forms of liability, such as aiding and abetting"[20]

The Mpambara Trial Chamber held that:

"Unlike conspiracy, no specific agreement to commit the crime need be shown: the common purpose may arise spontaneously and informally, and the persons involved need not be associated through a formal organization."[21]

The Simba Appeals Chamber held that:

"It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously"[22]

In the Zigiranyiazo case the Trial Chamber found that:

"The jurisprudence of both ad-hoc Tribunals establishes three categories of JCE: basic, systemic and extended. The actus reus is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. Although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[23]

M.1.4. The common purpose included an element of criminality

M.1.4.1. ICC

In the Katanga Trial Judgement, the Trial Chamber held that:

"As to the criminality of such purpose, the Chamber considers that the purpose must be to commit the crime or must encompass its execution. It need not be specifically directed at the commission of a crime within the jurisdiction of the Court. Nor must the group pursue a purely criminal purpose or must its ultimate purpose be criminal. Hence, a group with a political and strategic goal which also entails criminality or the execution of a crime may constitute a group acting with a common purpose within the meaning of article 25(3)(d). It is the Chamber’s view that the participants in the common purpose must harbour the same intent: they must mean to cause that consequence which constitutes the crime or be aware that the crime will occur in the ordinary course of events. Such shared intent may be established by, inter alia, the group’s collective decisions and action, or its omissions." [57]

M.1.4.2. ICTY

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"As a matter of law, the objective or common purpose does not need to be achieved in order for a trial chamber to conclude that a plurality of persons shared a common purpose or that crimes were committed in furtherance of a joint criminal enterprise. Therefore, the Trial Chamber’s conclusion that the common purpose was to change the ethnic balance of Kosovo to ensure Serb control over the province would still be reasonable even if the shift in ethnic balance was temporary and the purpose in fact not achieved."[24]

The Tadić Appeals Chamber held that:

"In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:

A plurality of persons. They need not be organised in a military, political or administrative structure, as is clearly shown by the Essen Lynching and the Kurt Goebell cases.

The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

"Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose."[25]

Regarding the differentiation between Art. 25 (c) and Art. 25 (d) ICC Statute, the Furundžija Trial Chamber held that:

"Article 25 of the Rome Statute distinguishes between, on the one hand, a person who ‘contributes to the commission or attempted commission of […] a crime by a group of persons acting with a common purpose’ where the contribution is intentional and done with the purpose of furthering the criminal activity or criminal purpose of the group or in the knowledge of the intention of the group to commit the crime", from, on the other hand, a person who, ‘for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission’. Thus, two separate categories of liability for criminal participation appear to have crystallised in international law – co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other."[26]

M.1.4.3. ICTR

The Zigiranyirazo Trial Chamber found that:

"The jurisprudence of both ad-hoc Tribunals establishes three categories of JCE: basic, systemic and extended. The actus reus is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. Although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[27]

The Nchamihigo Trial Chamber held that:

"JCE is not a crime but a mode of liability, for which the jurisprudence has identified three forms. The Appeals Chamber in Tadić has stated that the actus reus remains the same for each category of JCE, and requires: (i) a plurality of persons involved in the JCE, (ii) a common purpose or plan which amounts to or involves the commission of a crime provided for in the Statute, and (iii) the accused’s participation in the common purpose. The common purpose need not have been previously arranged or formulated. It may materialise extemporaneously and it can be inferred from the facts. And the accused’s participation need not involve the commission of a specific crime, but may take the form of assistance in, or contribution to, the execution of the common purpose"[28]

The Simba Trial Chamber held that:

"According to settled jurisprudence, the required actus reus for each form of joint criminal enterprise comprises three elements. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example, murder, extermination, torture, or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose. The Appeals Chamber in Kvocka et al. provided guidance on distinguishing between joint criminal enterprise and other forms of liability, such as aiding and abetting"[29]

The Mpambara Trial Chamber held that:

"Any act or omission which assists or contributes to the criminal purpose may attract liability: there is no minimum threshold of significance or importance, and the act need not independently be a crime"[30]

In the Zigiranyiazo case the Trial Chamber found that:

"The jurisprudence of both ad-hoc Tribunals establishes three categories of JCE: basic, systemic and extended. The actus reus is common to all three categories. First, a plurality of persons is required. They need not be organised in a military, political, or administrative structure. Second, the existence of a common plan, design or purpose, which amounts to, or involves, the commission of a crime provided for in the Statute, must be established. There is no need for the plan, design or purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the accused must have participated in the common purpose, either by participating directly in the commission of the agreed crime itself, or by assisting or contributing to the execution of the common purpose. Although the contribution need not be necessary or substantial, it should at least be a significant contribution to the crimes for which the accused is to be found responsible."[31]