M.2. The perpetrator contributed to the commission or attempted commission of the crime by the group of persons [in any way not amounting to another mode of liability under article 25(3)3(a)-(c)].

M.2. The perpetrator contributed to the commission or attempted commission of the crime by the group of persons [in any way not amounting to another mode of liability under article 25(3)3(a)-(c)].

M.2.1. ICC

In the Lubanga Decision on the Confirmation of Charges it was held that:

"Hence, in the view of the Chamber, article 25 (3)(d) of the Statute provides for a residual form of accessory liability which makes it possible to criminalise those contributions to a crime which cannot be characterized as ordering, soliciting, inducing, aiding, abetting or assisting within the meaning of article 25 (3)(b) or article 25 (3)(c) of the Statute, by reason of the state of mind in which the contributions were made."[1]

M.2.2. ICTY

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

"The Appeals Chamber notes that, unlike the form of co-perpetration applied by the Trial Chamber in Stakić, joint criminal enterprise liability as articulated in Brđ;anin, when it applies to crimes committed by physical perpetrators who are not members of the joint criminal enterprise, does not require "coordinated co-operation and joint control over the criminal conduct". Contrary to what Dorđević implies, it also does not require that the use of the physical perpetrator by the joint criminal enterprise member be equivalent to that of a "tool". In order to impute liability to an accused - as a member of a joint criminal enterprise - for a crime physically carried out by a non-member of the joint criminal enterprise, the Appeals Chamber requires the existence of a link between the accused and the crime, which is to be assessed on a case-by-case basis. It must also be shown that one of the joint criminal enterprise members acted in accordance with the common plan when "using" a principal perpetrator."[2]

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

"The Appeals Chamber has repeatedly held that participation in any category of joint criminal enterprise is a form of commission. As explained in the Krajišnik Appeal Judgement, a conviction pursuant to joint criminal enterprise liability for crimes committed through physical perpetrators who were not part of the joint criminal enterprise also properly falls under Article 7(1) of the Statute."[3]

M.2.3. ICTR

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

"In this respect, the Appeals Chamber recalls that, in addition to a plurality of persons and the existence of a common purpose which amounts to or involves the commission of a crime encompassed by the Statute, the actus reus of joint criminal enterprise requires the participation of the accused in this common purpose. The participation in the common purpose need not involve the commission of a crime, but may take the form of assistance in, or contribution to, the execution of the common purpose. 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. "[4]