Actus reus

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

544. The Appeals Chamber recalls that “a concerted agreement to commit genocide may be inferred from the conduct of the conspirators” and can be based on circumstantial evidence.[1] Further, the concerted or co-ordinated action of a group of individuals can constitute evidence of an agreement.[2] […]

553. […] In this respect, the Appeals Chamber recalls that “[w]hile [the] actus reus [of conspiracy to commit genocide] can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence. In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators”.[3]

[1]           Nahimana et al. Appeal Judgement, para. 896. See Karemera and Ngirumpatse Appeal Judgement, para. 740; Nzabonimana Appeal Judgement, paras 392, 448; Seromba Appeal Judgement, para. 221.

[2]           Nahimana et al. Appeal Judgement, para. 897. See Nzabonimana Appeal Judgement, para. 391.

[3]           Nahimana et al. Appeal Judgement, para. 896. See Seromba Appeal Judgement, para. 221.

Download full document
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

762. To establish the actus reus of persecution in the present case, the Trial Chamber was required to establish that the underlying acts of terrorising civilians: discriminated in fact, denied or infringed upon a fundamental right laid down in international customary or treaty law,[1] and were “of equal gravity to the crimes listed in Article 5 whether considered in isolation or in conjunction with other acts.”[2] […]

[1]           Nahimana et al. Appeal Judgement, para. 985.

[2]           Nahimana et al. Appeal Judgement, paras 985-988; Brđanin Appeal Judgement, para. 296; Simić Appeal Judgement, para. 177; Blaškić Appeal Judgement, paras 135, 139, 154-155, 160.

Download full document
Notion(s) Filing Case
Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

81. Bearing in mind that the basic elements of the mode of liability of aiding and abetting apply regardless of whether this form of liability is charged as “omission”,[1] the Appeals Chamber recalls that the actus reus of aiding and abetting consists of acts or omissions[2] which assist, encourage or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.[3] There is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime or that such conduct served as a condition precedent to the commission of the crime.[4] The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and the location at which the actus reus takes place may be removed from the location of the principal crime.[5] Accordingly, in order to determine whether Šljivančanin possessed the requisite actus reus for aiding and abetting murder, the Appeals Chamber must be satisfied beyond reasonable doubt that the Prosecution has demonstrated that [ljivančanin substantially contributed to their killing by his inaction[6] and that, when account is taken of the errors committed by the Trial Chamber, all reasonable doubt concerning [ljivančanin’s guilt has been eliminated.[7]

[1] Orić Appeal Judgement, para. 43. See supra para. 49.

[2] Nahimana et al. Appeal Judgement, para. 482; Ntagerura et al. Appeal Judgement, para. 370; Blaškić Appeal Judgement, para. 47.

[3] Nahimana et al. Appeal Judgement, para. 482; Blagojević and Jokić Appeal Judgement, para. 127; Ndindabahizi Appeal Judgement, para. 117; Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 370, fn. 740; Blaškić Appeal Judgement, paras 45, 48; Vasiljević Appeal Judgement, para. 102; Čelebići Appeal Judgement, para. 352; Tadić Appeal Judgement, para. 229.

[4] Blaškić Appeal Judgment, para. 48.

[5] Blaškić Appeal Judgment, para. 48.

[6] Cf. Ntagerura et al. Appeal Judgement, para. 321.

[7] Seromba Appeal Judgement, para. 11; Rutaganda Appeal Judgement, para. 24; Bagilishema Appeal Judgement, paras 13-14. See also Strugar Appeal Judgement, para. 14; Orić Appeal Judgement, para. 12; Halilović Appeal Judgement, para. 11; Limaj et al. Appeal Judgement, para. 13; Blagojević and Jokić Appeal Judgement, para. 9; Brđanin Appeal Judgement, para. 13.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

160. The Appeals Chamber recalls that the actus reus for participation in a joint criminal enterprise requires: (i) a plurality of persons; (ii) the existence of a common purpose (or plan) which amounts to or involves the commission of a crime encompassed by the Statute; and (iii) the participation of the accused in this common purpose. The basic form of joint criminal enterprise, which is at issue in this case, requires that the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission.

163. […] The Trial Chamber concluded that “Munyakazi was as much an integral part of [the] killings as those he enabled” and thus convicted him based on his role in the attacks at Shangi and Mibilizi parishes under Article 6(1) of the Statute for committing genocide and extermination as a crime against humanity. Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. Therefore, a finding that Munyakazi participated in a joint criminal enterprise in connection with the crimes for which he was convicted would have no bearing on the verdict. Munyakazi’s conviction is based on his committing the crimes, which fully encapsulates his criminal conduct.

[1] See Brđanin Appeal Judgement, para. 364. See also Ntakirutimana Appeal Judgement, paras. 463, 466.

[2] See Brđanin Appeal Judgement, para. 365. See also Ntakirutimana Appeal Judgement, para. 467.

[3] Trial Judgement, para. 491. See also Trial Judgement, paras. 501, 508.

[4] Nahimana et al. Appeal Judgement, para. 478; Ntagerura et al. Appeal Judgement, para. 24; Ntakirutimana Appeal Judgement, para. 452. See also Krnojelac Appeal Judgement, para. 29, quoting Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 20.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

320. The Appeals Chamber further notes that the conclusion that Renzaho gave an order to kill at roadblocks is, standing alone, an insufficient basis to find that Renzaho is criminally responsible under Article 6(1) of the Statute for ordering any such killings. In the present case, the Trial Chamber made no findings concerning when or where Renzaho gave the order,[1] to whom or to what category of perpetrators he gave the order,[2] and whether Renzaho was in a position of authority vis-à-vis the recipient.[3] The Appeals Chamber recalls that a Trial Chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[4] Taken together, the paucity of findings in relation to the conclusion that Renzaho ordered killings at roadblocks convinces the Appeals Chamber, Judge Pocar dissenting, that the Trial Chamber erred in failing to provide a reasoned opinion. 

[1] Cf. D. Milošević Appeal Judgement, para. 267.

[2] Cf. Boškoski and Tarčulovski Appeal Judgement, para. 75.

[3] See Kamuhanda Appeal Judgement, para. 75.

[4] Kajelijeli Appeal Judgement, para. 60; Kordić and Čerkez Appeal Judgement, para. 383.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

107. Hartmann is incorrect in her argument that “[w]hilst the Prosecutor need not prove an actual interference with the administration of justice, proof must be made that the impugned conduct created a real risk for the administration of justice”.[1] When a court order has been violated, the Trial Chamber does not need to assess whether any actual interference took place or whether a real risk to the administration of justice has taken place because such a violation per se interferes with the administration of justice. The Appeals Chamber in the Jović case held that “[t]he language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice.”[2] Thus, “[n]o additional proof of harm to the International Tribunal’s administration of justice is required”.[3]

[1] Hartmann Final Appeal Brief, para. 73.

[2] Jović Contempt Appeal Judgement, para. 30, quoting Marijačić and Rebić Contempt Appeal Judgement, para. 44.

[3] Jović Contempt Appeal Judgement, para. 30; see also Nshogoza Appeal Judgement, para. 56; Šešelj Contempt Appeal Judgement, para. 20.

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

108. It also follows from the above that the issue of whether there was a real risk to the administration of justice was not a jurisdictional matter. The Appeals Chamber is therefore of the view that the Trial Chamber did not err by refusing to treat this issue as such during the trial.

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

896. The Appeals Chamber recalls that the actus reus of the crime of conspiracy to commit genocide is a concerted agreement to act for the purpose of committing genocide. While such actus reus can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence.[1] In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators.[2] However, as in any case where the Prosecutor seeks, on the basis of circumstantial evidence, to prove a particular fact upon which the guilt of the accused depends,[3] the existence of a conspiracy to commit genocide must be the only reasonable inference based on the totality of the evidence.

897. The Appeals Chamber takes the view that the concerted or coordinated action of a group of individuals can constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: as the Trial Chamber recognized, these words are “the central element that distinguishes conspiracy from ‘conscious parallelism’, the concept put forward by the Defence to explain the evidence in this case”.[4] The Appeals Chamber thus considers that the Appellants were not found guilty by association or by reason of the similarity of their conduct: rather, the Trial Chamber found that there had been a concerted or coordinated action and, on the basis inter alia of this factual finding, it inferred the existence of a conspiracy. […]

898. Turning to Appellant Barayagwiza’s argument, the Appeals Chamber considers that the agreement need not be a formal one.[5] It stresses in this respect that the United States Supreme Court has also recognized that the agreement required for conspiracy “need not be shown to have been explicit”.[6] The Appellant is thus mistaken in his submission that a tacit agreement is not sufficient as evidence of conspiracy to commit genocide. The Appeals Chamber recalls, however, that the evidence must establish beyond reasonable doubt a concerted agreement to act, and not mere similar conduct.

906. The Appeals Chamber finds that, even if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only reasonable inference was that the Appellants had conspired together to commit genocide.

[1] See, in this respect, Kajelijeli Trial Judgement, para. 787 (“[t]he agreement in a conspiracy is one that may be established by the prosecutor in no particular manner, but the evidence must show that an agreement had indeed been reached”). In the Ntakirutimana, Niyitegeka and Kajelijeli cases, the Trial judges noted that the accused had attended meetings although they did not require meetings as elements of the crime of conspiracy to commit genocide: see Kajelijeli Trial Judgement, paras. 434-453, 787-788, 794; Niyitegeka Trial Judgement, paras. 423-429; Ntakirutimana Trial Judgement, paras. 799-800.

[2] In this respect, the Appeals Chamber notes that a number of legal systems explicitly recognize that the agreement can be inferred from the conduct of the parties to the conspiracy: United States: Glasser v. United States, 315 U.S. 60, 80 (1942); United Kingdom: R. v. Anderson, [1986] A.C. 27, 38; Canada: R. v. Gagnon, [1956] S.C.R. 635, para. 12.

[3] Ntagerura et al. Appeal Judgement, paras. 306, 399; Stakić Appeal Judgement, para. 219; Krstić Appeal Judgement, para. 41; Vasiljević Appeal Judgement, paras. 120, 128, 131; Čelebići Appeal Judgement, para. 458.

[4] Judgement, para. 1048. See also paras. 1045, 1047.

[5] As held by common law courts with respect to conspiracy: see for example, R. v. Anderson, [1986] A.C. 27, 37 (United Kingdom).

[6] Iannelli v. United States, 420 U.S. 770, 777, footnote 10 (1975), reaffirming Direct Sales Co. v. United States, 319 U.S. 703, 711-713 (1943). 

Download full document
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

227. 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:

i. 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.

ii. 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.

iii. 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.

Download full document
Notion(s) Filing Case
Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

29. In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber notes that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in the Matter of Witness K12 in the Slobodan Milošević case, in which he made reference to “obstinate refusal to answer without reasonable excuse”,[1] but neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of this Rule.[2] However the Appeals considers that, in any event, such an addition cannot be considered as going to the detriment of the Accused for the reason that it is an addition pro reo, i.e. it narrows the scope of the crime under this Rule.

30. The Appeals Chamber now turns to the Trial Chamber’s replacement of the word “contumaciously” with “persistently”. This follows the reasoning in the contempt proceedings against Kosta Bulatović in the Slobodan Milošević case in which the Trial Chamber referred to the accused “deliberately refus[ing] to comply with an order of the Trial Chamber to answer questions and persist[ing] in that refusal when fully advised of the position and given a further opportunity to respond.”[3] Although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea,[4] if “contumacious” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent but rather states:

Dans l’exercice de son pouvoir inhérent, le Tribunal peut déclarer coupable d’outrage les personnes qui entravent délibérément et sciemment le cours de la justice, y compris notamment toute personne qui: i) étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre [...]

In light of the phrase “malgré la demande qui lui en est faite par la Chambre” (despite the Chamber’s request), the crime under  Rule 77(A) of the Rules must be consider committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, Dissenting Opinion of Judge Kwon, 21 November 2002 (“Judge Kwon’s Dissenting Opinion in the Matter of Witness K12”), para. 2.

[2] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, T. 18-34 (18 November 2002); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, 21 November 2002 (“Trial Chamber in the Matter of Witness K12”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005 (“Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Separate Opinion of Judge Bonomy on Contempt of the Tribunal (“Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeal on Kosta Bulatović Contempt Proceedings, 29 August 2005 (“Bulatović Appeal Decision on Contempt”).

[3] Bulatović Trial Decision on Contempt, para. 16.

[4] In the Trial Chamber in the Matter of Witness K12, the Trial Chamber interpreted “contumaciously” to mean “perverse”; T. 33 (18 November 2002) (closed session)); However, Judge Kwon dissented on this interpretation, arguing that “Rule 77 may be interpreted in such a way that the terms ‘knowingly’, ‘wilfully’ and ‘contumaciously’ all have legal significance, but that, taken together, they should be interpreted as meaning an obstinate refusal to answer without reasonable excuse.” (Judge Kwon’s Dissenting Opinion in the Matter of Witness K12, para. 2). In the contempt proceedings against Kosta Bulatović also in the Slobodan Milošević case, the Trial Chamber referred to “the test of ‘knowingly and wilfully’ interfering with the Tribunal’s administration of justice by ‘contumaciously’ refusing to answer questions” and concluded that this test was met when the accused “deliberately refused to comply with an order of the Trial Chamber to answer questions and persisted in that refusal when fully advised of the position and given an further opportunity to respond.” (Bulatović Trial Decision on Contempt, para. 16). Meanwhile Judge Bonomy’s separate opinion appended to that decision stated that the plain meaning of “contumacious” as “stubbornly or wilfully disobedient to authority” should be preferred over defining it as “perverse” (Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt, para. 1). 

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

The Appeals Chamber examined the issue of "specific direction", namely whether a chamber must determine whether the accused's alleged acts and omissions were specifically directed to assist the commission of the concerned crimes.

1622.  The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[1] In view of the divergence between the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements, on one hand, and the Perišić Appeal Judgement, on the other hand, [with regard to the issue of whether “specific direction” is an element of the actus reus of aiding and abetting liability] the Appeals Chamber, Judge Tuzmukhamedov dissenting, will determine the correct approach.[2] In so doing, mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases,[3] the Appeals Chamber will consider the jurisprudence of the Tribunal and the ICTR as well as customary international law to ascertain where the law stands on the issue of specific direction.

[…]

1649.  Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundžija Trial Judgement and confirmed by the Blaškić Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[4] The required mens rea is “the knowledge that these acts assist the commission of the offense”.[5] The Appeals Chamber reaffirms the position taken by the Blaškić Appeal Judgement in this regard.

1650.  Accordingly, the Appeals Chamber confirms that the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,[6] accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.[7] Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.[8]

See also paras 1618-1621, 1623-1648, in which the Appeals Chamber examined the jurisprudence of the Tribunal and the ICTR as well as customary international law.

[1] Aleksovski Appeal Judgement, para. 111.

[2] The Appeals Chamber, Judge Tuzmukhamedov dissenting, further considers that the issue at hand concerns the constituent elements of aiding and abetting liability and that its significance warrants the intervention by the Appeals Chamber. In this regard, the Appeals Chamber also recalls that the issue was raised by the parties (Appeal Hearing, 13 Mar 2013, AT. 402-416, 418-420, 440-460). In addition, the Appeals Chamber notes in this context that the Trial Chamber found that Lazarević, as the Priština Corps Commander, was present in Kosovo and regularly inspected his troops in the field throughout the period during which the campaign of forcible displacements was carried out (see Trial Judgement, vol. 3, paras 924-925). However, the Trial Chamber did not find that he was physically present at the crime sites during the commission of the crimes by members of the VJ. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that if it were to adopt the ruling of the Perišić Appeal Judgement requiring “explicit consideration of specific direction” in cases where the aider and abettor is “remote” (see Perišić Appeal Judgement, paras 38-39), it would be necessary to examine whether Lazarević’s assistance was remote as to require explicit consideration of specific direction. This is a matter disputed by the parties (Appeal Hearing, 13 Mar 2013, AT. 402, 418-420, 461-470). Therefore, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that the discussion as to whether the Appeals Chamber should follow the Perišić Appeal Judgement with respect to the issue of specific direction cannot be circumvented in determining the outcome of the present case. The Appeals Chamber further considers that even if the application of the ruling of the Perišić Appeal Judgement would not ultimately invalidate the Trial Judgement, it may “hear appeals in which a party has raised a legal issue that would not lead to the invalidation of the trial judgement but that is nevertheless of general significance to the Tribunal’s jurisprudence”, so long as such issues have a nexus with the case at hand (see supra, para. 19), and references therein; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p. 3).

[3] See Aleksovski Appeal Judgement, paras 101-106, 111.

[4] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, paras 471-481.

[5] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, para. 436.

[6] Mrkšić and Šljivančanin Appeal Judgement, para. 159. In these circumstances, the Mrkšić and Šljivančanin Appeal Judgement was not required to provide cogent reasons as there was no departure from the prevailing jurisprudence. See also Lukić and Lukić Appeal Judgement, para. 424.

[7] The Appeals Chamber notes that during the interval between the rendering of the Mrkšić and Šljivančanin Appeal Judgement and the Perišić Appeal Judgement, three ICTR appeal judgements mention specific direction in passing, but do not consider it to be a required element of this mode of liability. See Ntawukulilyayo Appeal Judgement, paras 214, 216; Rukundo Appeal Judgement, para. 52; Kalimanzira Appeal Judgement, paras 74, 79. See also supra, fn. 5336. Significantly, the Lukić and Lukić Appeal Judgement explicitly states: “In Mrkšić and Šljivančanin, the Appeals Chamber has clarified that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting and finds that there is no ‘cogent reason’ to depart from this jurisprudence” (see Lukić and Lukić Appeal Judgement, para. 424 (internal quotation marks and references omitted, emphasis added)).

[8] See also supra, paras 1621-1622. See Aleksovski Appeal Judgement, para. 111.

Download full document
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1765. […] [T]he Appeals Chamber observes that the participation of the aider and abettor need not be a crime in itself.[1] […]

[1]           See Šainović et al. Appeal Judgement, para. 1663; Blagojević and Jokić Appeal Judgement, paras 201-202.

Download full document
Notion(s) Filing Case
Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

56. The Appeals Chamber is equally unconvinced by Nshogoza’s argument that the actus reus of contempt requires a certain threshold of gravity. As the ICTY Appeals Chamber has stated, “[a]ny defiance of an order of a Chamber per se interferes with the administration of justice for the purposes of a conviction for contempt.”[1] No additional proof of harm to the Tribunal’s administration of justice is required.[2] The Appeals Chamber is not convinced that the defiance of a Chamber’s order conveys any different connotation than a knowing and wilful violation of one.[3]

57. Considerations of the gravity of an accused’s conduct or his underlying motivations are rather to be assessed in connection with the decision to initiate proceedings or in sentencing.[4] Bearing this in mind, the Appeals Chamber considers that the various statements by Trial Chambers, cited by Nshogoza, which take into account the minimal gravity surrounding a violation of a Chamber’s order should be understood, not as a finding that the conduct was not contempt, but as an exercise of the discretion of the Chamber not to initiate proceedings in such circumstances. The fact that other persons might also have engaged in similar conduct is not a defence.

[1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 30 (“Jović Appeal Judgement”). See also Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R.77.2-A, Judgement, 27 September 2006, para. 44 (“The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. […] It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.”) (“Marijačić and Rebić Appeal Judgement”).

[2] Jović Appeal Judgement, para. 30.

[3] Jović Appeal Judgement, para. 30 (using “defiance” and “violation” interchangeably in describing the actus reus of a violation of Rule 77(A) of the Rules). See also Marijačić and Rebić Appeal Judgement, para. 44.

[4] Jović Appeal Judgement, para. 41 (noting that the Trial Chamber correctly considered in mitigation the fact that some of the witness protection measures which were violated were unnecessary). Cf. also Blagojević and Jokić Appeal Judgement, para. 202; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 269.

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

214. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically aimed at assisting, encouraging, or lending moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.[1] Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”, and need not “serve as condition precedent for the commission of the crime.”[2]

[…]

216. The Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo substantially contributed to the Kabuye hill killings by encouraging Tutsis to seek refuge there and then providing reinforcements to those attempting to kill them. These acts alone suffice to constitute the actus reus of aiding and abetting. […]

[1] See, e.g., Karera Appeal Judgement, para. 321; Nahimana et al. Appeal Judgement, para. 482.

[2] Kalimanzira Appeal Judgement, para. 86; Rukundo Appeal Judgement, para. 52; Blagojević and Jokić Appeal Judgement, para. 134.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

52. The Appeals Chamber has explained that an “aider and abettor commit[s]] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime.”[1] It recalls that there is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime nor that such conduct served as a condition precedent to the commission of the crime.[2] It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realisation of that crime,[3] the establishment of which is a “fact-based inquiry”.[4] […]

[1] Seromba Appeal Judgement, para. 44. See also Karera Appeal Judgement, para. 321; Mrkšić and [ljivančanin Appeal Judgement, para. 81; Blagojević and Jokić Appeal Judgement, para. 127.

[2] Mrkšić and [lijivančanin Appeal Judgement, para. 81; Blagojević and Jokić Appeal Judgement, para. 134; Blaškić Appeal Judgment, para. 48.

[3] Mrkšić and [ljivančanin Appeal Judgement, para. 81; Orić Appeal Judgement, para. 43; Nahimana et al. Appeal Judgement, para. 482; Blagojević and Jokić Appeal Judgement, para. 134.

[4] Blagojević and Jokić Appeal Judgement, para. 134.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

277. The Appeals Chamber recalls that ordering under Article 6(1) of the Statute requires that a person in a position of authority instruct another person to commit an offence.[1] As previously held, “the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of ‘instructing’, pivotal to the understanding of the question of ‘ordering’, requires ‘a positive action by the person in a position of authority’”.[2]

283. The Appeals Chamber considers that, in the absence of any evidence that Nsengiyumva gave any instructions,[3] the mere involvement of three soldiers in civilian attire under his command[4] and the existence of a pattern of crimes being committed in and around his area of control immediately after the death of the President could not lead a reasonable trier of fact to find that the only reasonable inference was that Nsengiyumva ordered the killings perpetrated in Gisenyi town on 7 April 1994.

323. The Appeals Chamber finds that in the absence of evidence of military involvement and coordination between the military and the civilian attackers, the mere fact that the killing took place in Gisenyi town the day following President Habyarimana’s death is insufficient for a reasonable trier of fact to find that the only reasonable inference was that the unidentified civilian assailants acted upon Nsengiyumva’s orders. […]

571. Turning to the Trial Chamber’s finding that Bagosora ordered the killing of Maharangari, the Appeals Chamber observes that the Trial Chamber’s factual findings do not support its legal conclusion. In its factual findings, the Trial Chamber concluded that:

Bagosora had authority over the Rwandan army at the time of the attack […]. There is no credible evidence directly showing that Bagosora was aware of the murder of Maharangari. However, given the widespread killing throughout Kigali perpetrated by or with the assistance of military personnel, including the targeted killings on the morning of 7 April […], the Chamber is satisfied that Bagosora was aware that personnel under his authority were participating in killings.[5]

While the Trial Chamber discussed Bagosora’s awareness of the killing of Maharangari and Bagosora’s superior position, at no point did it discuss evidence that Bagosora ordered the crimes. The Trial Chamber’s factual findings therefore appear to correspond only to those which would normally be entered in relation to superior responsibility.

[1] See, e.g., Setako Appeal Judgement, para. 240; Kalimanzira Appeal Judgement, para. 213; Milošević Appeal Judgement, para. 290; Nahimana et al. Appeal Judgement, para. 481. The Appeals Chamber recalls that responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order. See Renzaho Appeal Judgement, para. 315; Nahimana et al. Appeal Judgement, para. 481. See also Boškoski and Tarčulovski Appeal Judgement, para. 68.

[2] Milošević Appeal Judgement, para. 267, citing Galić Appeal Judgement, para. 176. See also Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182.

[3] With respect to the Prosecution’s reliance on Witness ZF’s testimony that Nsengiyumva ordered Lieutenant Bizumuremyi to begin operations to kill Tutsis, the Appeals Chamber notes that the Trial Chamber merely accepted that Witness ZF was present at the Gisenyi military camp for various periods from 6 to 7 April 1994 and declined to rely on Witness ZF’s further testimony in the absence of corroboration. While the Trial Chamber did not explicitly articulate that it refused to rely on the witness’s account on Nsengiyumva’s alleged order to Bizumuremyi, its discussion of the witness’s credibility and its general “questions about the credibility of Witness ZF’s uncorroborated account” clearly suggest that the Trial Chamber also refused to rely on Witness ZF’s testimony on Nsengiyumva’s alleged order to Bizumuremyi along with his testimony concerning Nsengiyumva’s alleged meeting with Interahamwe or conversations with Bagosora on that matter. This is reflected in the Trial Chamber’s factual and legal findings on Nsengiyumva’s responsibility, which do not refer to Nsengiyumva’s alleged order to Bizumuremyi. See Trial Judgement, paras. 1051-1054, 1065, 2142.

[4] Witness DO specifically implicated three soldiers in civilian attire in the killings of 7 April 1994. See Witness DO, T. 30 June 2003 pp. 26, 32, 62, T. 1 July 2003 p. 48, and T. 2 July 2003 pp. 36, 37, 39, 54. See also Trial Judgement, para. 1016. As regards Nsengiyumva’s authority over these soldiers, the Appeals Chamber refers to its discussion infra, paras. 292-294, 297.

[5] Trial Judgement, para. 962.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

127. […] The actus reus need not serve as condition precedent for the crime and may occur before, during, or after the principal crime has been perpetrated.[1] The Appeals Chamber has also determined that the actus reus of aiding and abetting may be satisfied by a commander permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of a crime.[2] […]

134. The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry. […] The Appeals Chamber, however, has already held that it is not required that the act of assistance serve as a condition precedent for the commission of the crime.[3] In making its findings, the Trial Chamber was aware of the more limited scope of assistance provided by the Bratunac Brigade in relation to other elements of the VRS and civilian authorities.[4] Nonetheless, the Trial Chamber described the contribution of the resources made available by Blagojević as “practical assistance” to the crimes which had a substantial effect on the commission of the crimes.[5] The Appeals Chamber recalls that, in a similar context, it reached the same conclusion in the Krstić Appeal Judgement.[6]

187. In the Blaškić Appeal Judgement, the Appeals Chamber considered whether the actus reus of aiding and abetting requires causation between the act of the accused and the act of the principal, or in other words, whether the contribution “must have a direct and important impact on the commission of the crime.”[7] The Appeals Chamber found that “proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.”[8] However, the Appeals Chamber reiterated that one of the requirements for the actus reus of aiding and abetting is that the support of the aider and abettor have a substantial effect upon the perpetration of the crime.[9]

188. In reaching this conclusion, in the Blaškić Appeal Judgement the Appeals Chamber referenced the definition of aiding and abetting in the Vasiljević Appeal Judgement, which is identical to that set out in the Tadić Appeal Judgement, and which, in specifying that the assistance given by an aider and abettor must be specifically directed, also contrasted aiding and abetting liability with that of joint criminal enterprise.[10] However, in the Blaškić Appeal Judgement the Appeals Chamber also found that the Trial Chamber correctly held that the standard for the actus reus was that set out in the Furundžija Trial Judgement: “consist[ing] of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[11]

189. The Appeals Chamber observes that while the Tadić definition has not been explicitly departed from, specific direction has not always been included as an element of the actus reus of aiding and abetting.[12] This may be explained by the fact that such a finding will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime. The Appeals Chamber also considers that, to the extent specific direction forms an implicit part of the actus reus of aiding and abetting, where the accused knowingly participated in the commission of an offence and his or her participation substantially affected the commission of that offence, the fact that his or her participation amounted to no more than his or her “routine duties” will not exculpate the accused.

195. The Appeals Chamber rejects the proposition that independent initiative, power, or discretion must be shown in order for the actus reus of aiding and abetting to be established. It recalls its previous rejection of the contention that there exists a special requirement that a position of superior authority be established before liability for aiding and abetting under Article 7(1) of the Statute can be recognized.[13] The apparent implication of that argument was that a person lacking sufficient authority to be considered a superior or to be acting independently, rather than in the course of routine duties, would necessarily also lack the sufficient authority or capacity to make a significant contribution to the commission of the crime. The Appeals Chamber considers that such a determination is to be made on a case by case basis. In this sense, an accused’s position of authority and ability to exercise independent initiative constitute contextual factors that may go to proving the significance of the accused's assistance in the commission of the crime.

[1] Blaškić Appeal Judgement, para. 48. See also Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.

[2] Krstić Appeal Judgment, paras. 137, 138, 144.

[3] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, para. 48.

[4] See, e.g., Trial Judgement, para. 191 (noting the primary role played by the MUP in the transport of Bosnian Muslim refugees out of Potočari on 13 July 1995); para. 835 (“In relation to Vidoje Blagojević, the Trial Chamber finds that he was not one of the major participants in the commission of the crimes”).

[5] Trial Judgement, paras. 747, 755, 757.

[6] Krstić Appeal Judgement, paras. 135-138.

[7] Blaškić Appeal Judgement, para. 43.

[8] Blaškić Appeal Judgement, para. 48. See also Simić Appeal Judgement, para. 85.

[9] Blaškić Appeal Judgement, para. 48.

[10] Vasiljević Appeal Judgement, para. 102.

[11] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283 (quoting Furundzija Trial Judgement, para. 249).

[12] Krnojelac Appeal Judgement, para. 37, citing Tadić Appeal Judgment, para. 229; Čelebići Appeal Judgement, para. 345, citing Tadić Trial Judgement, para 688 (where the opposition is drawn between culpability where the accused “intentionally commits” a crime or where he “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime” (emphasis added)). But see Čelebići Appeal Judgement, para. 352.

[13] Čelebići Appeal Judgement, para. 338 (in the context of the offence of unlawful confinement); Aleksovski Appeal Judgement, para. 170 (in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields).

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

135. The Appeals Chamber considers that “although persecution often refers to a series of acts, a single act may be sufficient, as long as this act or omission discriminates in fact and was carried out deliberately with the intention to discriminate on one of the listed grounds.”[1] Furthermore, the acts underlying persecutions as a crime against humanity, whether considered in isolation or in conjunction with other acts, must constitute a crime of persecutions of gravity equal to the crimes listed in Article 5 of the Statute.[2]

138. The Appeals Chamber considers that the Trial Chamber failed to mention that acts of persecutions, considered separately or together, should reach the level of gravity of other crimes listed in Article 5 of the Statute. It appeared to consider, erroneously, that underlying acts are rendered sufficiently grave if they are committed with a discriminatory intent.

[1] Vasiljević Appeal Judgement, para. 113.

[2] Krnojelac Appeal Judgement, paras. 199, 221.

Download full document
ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

125. The Appeals Chamber finds that it is not required to prove Tarčulovski’s presence at the crime scenes to hold him criminally responsible, provided the Trial Chamber was satisfied that the crimes were committed by police acting under Tarčulovski’s direction or according to his plan.[1]

[…].

132. The Appeals Chamber recalls that the accused’s presence at the crime scene is not a requisite element of planning, instigating and ordering,[2] although it can be one of the factors to be considered in determining the mens rea of the planner, instigator or orderer. […]

[1] The Trial Chamber found that Tarčulovski was not criminally responsible for the murder of Atulla Quaili because the perpetrators of the murder were not acting under his authority or direction, and not because he was away from the site where Atulla Quaili was killed (Trial Judgement, para. 575). Furthermore, the presence of an instigator, orderer or planner at the crime scene is not required for the proof of planning, instigating or ordering criminal conduct (Milošević Appeal Judgement, para. 290, regarding ordering. Cf. Aleksovski Trial Judgement, para. 62; Tadić Trial Judgement, paras 679 and 687). The Appeals Chamber also recalls that in the jurisprudence of the Tribunal and the ICTR, the accused’s presence was never mentioned as an element of planning, instigating and ordering (e.g., Planning: Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Kordić and Čerkez Appeal Judgement, paras 27, 29 and 32. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361).

[2] See supra para. 125. See also for the mens rea of planning: Martić Appeal Judgement, fn. 553; Kordić and Čerkez Appeal Judgement, paras 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Martić Appeal Judgement, fn. 553; Kordić and Čerkez Appeal Judgement, paras 29 and 32; Nahimana et al. Appeal Judgement, para. 480. Ordering: Martić Appeal Judgement, paras 221-222; Blaškić Appeal Judgement, para. 42; Kordić and Čerkez Appeal Judgement, paras 29-30; Nahimana et al. Appeal Judgement, para. 481.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

160. The Appeals Chamber recalls that the actus reus of ordering requires that a person in a position of authority instruct another person to commit an offence.[1] There is no requirement that the order be given in any particular form, and the existence of the order may be proven through circumstantial evidence.[2] Furthermore, it is sufficient to demonstrate that the order substantially contributed to the physical perpetrator’s criminal conduct.[3]

[1] Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, para. 28; Nahimana et al. Appeal Judgement, para. 481; Semanza Appeal Judgement, para. 361. See also Trial Judgement, para. 400.

[2] Trial Judgement, para. 400 (citing, in particular, Kamuhanda Appeal Judgement, para. 76; Galić Appeal Judgement, paras 170-171; Limaj et al. Trial Judgement, para. 515; Blaškić Trial Judgement, para. 281).

[3] Nahimana et al. Appeal Judgement, para. 492; Strugar Trial Judgement, para. 332. See also Aleksovski Trial Judgement, para. 61; Tadić Trial Judgement, paras 673-674.  

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

45. In Vasiljević, the Appeals Chamber set out the actus reus and mens rea of aiding and abetting. It stated:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. […]

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal. […][1]

The Appeals Chamber considers that there are no reasons to depart from this definition.

46. In this case, the Trial Chamber, following the standard set out in Furundžija, held that the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[2] It further stated that the mens rea required is “the knowledge that these acts assist the commission of the offense.”[3] The Appeals Chamber considers that the Trial Chamber was correct in so holding.

47. The Trial Chamber further stated that the actus reus of aiding and abetting may be perpetrated through an omission, “provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea.”[4]  It considered:

In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.[5]

The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting. 

48. The Trial Chamber in this case went on to state:

Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom.[6]

The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime.  In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.  It further agrees that the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.

49. In relation to the mens rea of an aider and abettor, the Trial Chamber held that “in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”[7] However, as previously stated in the Vasiljević Appeal Judgement, knowledge on the part of the aider and abettor that his acts assist in the commission of the principal perpetrator’s crime suffices for the mens rea requirement of this mode of participation.[8] In this respect, the Trial Chamber erred.

50. The Trial Chamber agreed with the statement in the Furundžija Trial Judgement that “it is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”[9] The Appeals Chamber concurs with this conclusion.

[1] Vasiljević Appeal Judgement, para. 102.

[2] Trial Judgement, para. 283 (quoting Furundžija Trial Judgement, para. 249).

[3] Trial Judgement, para. 283 (quoting Furundžija Trial Judgement, para. 249).

[4] Trial Judgement, para. 284 (footnote omitted).

[5] Trial Judgement, para. 284 (footnote omitted).

[6] Trial Judgement, para. 285 (citing Furundžija Trial Judgement, para. 233; Aleksovski Trial Judgement, para. 61).

[7] Trial Judgement, para. 286.

[8] Vasiljević Appeal Judgement, para. 102.

[9] Trial Judgement, para. 287 (quoting Furundžija Trial Judgement, para. 246). See, for example, in German law, “Risikoerhöhungstheorie” (“theory of added peril”), BGH St. 42, 135-139.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.02.2013 PERIŠIĆ Momčilo
(IT-04-81-A)

36. Accordingly, despite the ambiguity of the Mrkšić and Šljivančanin Appeal Judgement, the Appeals Chamber, Judge Liu dissenting, considers that specific direction remains an element of the actus reus of aiding and abetting liability. The Appeals Chamber, Judge Liu dissenting, thus reaffirms that no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly.[1]

See also paras 26-35, 48.

The Appeals Chamber discussed the circumstances in which specific direction must be explicitly considered:

37. At the outset, the Appeals Chamber, Judge Liu dissenting, recalls that the element of specific direction establishes a culpable link between assistance provided by an accused individual and the crimes of principal perpetrators.[2] In many cases, evidence relating to other elements of aiding and abetting liability[3] may be sufficient to demonstrate specific direction and thus the requisite culpable link.

38. In this respect, the Appeals Chamber notes that previous appeal judgements have not conducted extensive analyses of specific direction. The lack of such discussion may be explained by the fact that prior convictions for aiding and abetting entered or affirmed by the Appeals Chamber involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators.[4] Where such proximity is present, specific direction may be demonstrated implicitly through discussion of other elements of aiding and abetting liability, such as substantial contribution. For example, an individual accused of aiding and abetting may have been physically present during the preparation or commission of crimes committed by principal perpetrators and made a concurrent substantial contribution.[5] In such a case, the existence of specific direction, which demonstrates the culpable link between the accused aider and abettor’s assistance and the crimes of principal perpetrators, will be self-evident.

39. However, not all cases of aiding and abetting will involve proximity of an accused individual’s relevant acts to crimes committed by principal perpetrators. Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction. In such circumstances, the Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific direction is required.[6]

40. The factors indicating that acts of an accused aider and abettor are remote from the crimes of principal perpetrators will depend on the individual circumstances of each case. However, some guidance on this issue is provided by the Appeals Chamber’s jurisprudence. In particular, the Appeals Chamber has previously concluded, in discussing aiding and abetting liability, that significant temporal distance between the actions of an accused individual and the crime he or she allegedly assisted decreases the likelihood of a connection between that crime and the accused individual’s actions.[7] The same rationale applies, by analogy, to other factors separating the acts of an individual accused of aiding and abetting from the crimes he or she is alleged to have facilitated. Such factors may include, but are not limited to, geographic distance.

See also paras 42, 70.

The Appeals Chamber also discussed types of evidence that may prove specific direction.

44. The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. However, the Appeals Chamber recalls again that the Tadić Appeal Judgement indicated that specific direction involves finding a closer link between acts of an accused aider and abettor and crimes committed by principal perpetrators than is necessary to support convictions under JCE.[8] The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators.[9] In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.

48. […] [T]he Appeals Chamber acknowledges that specific direction may involve considerations that are closely related to questions of mens rea. Indeed, as discussed below, evidence regarding an individual’s state of mind may serve as circumstantial evidence that assistance he or she facilitated was specifically directed towards charged crimes.[10] However, the Appeals Chamber recalls again that the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.[11] By contrast, as set out above, the long-standing jurisprudence of the Tribunal affirms that specific direction is an analytically distinct element of actus reus.[12]

56. The Appeals Chamber notes the Prosecution’s suggestion that the magnitude of VJ aid provided to the VRS is sufficient to prove Perišić’s actus reus with respect to the VRS Crimes in Sarajevo and Srebrenica.[13] However, the Appeals Chamber observes that while the Trial Chamber considered evidence regarding volume of assistance in making findings on substantial contribution,[14] this analysis does not necessarily demonstrate specific direction, and thus such evidence does not automatically establish a sufficient link between aid provided by an accused aider and abettor and the commission of crimes by principal perpetrators.[15] In the circumstances of this case, indicia demonstrating the magnitude of VJ aid to the VRS serve as circumstantial evidence of specific direction; however, a finding of specific direction must be the sole reasonable inference after a review of the evidentiary record as a whole.[16]

68. […] [T]he Appeals Chamber, Judge Liu dissenting, recalls that evidence regarding knowledge of crimes, alone, does not establish specific direction, which is a distinct element of actus reus, separate from mens rea.[17] Indicia demonstrating that Perišić knew of the VRS Crimes in Sarajevo and Srebrenica may serve as circumstantial evidence of specific direction; however, a finding of specific direction must be the sole reasonable inference after a review of the evidentiary record as a whole.[18]

72. […] [A]ssistance from one army to another army’s war efforts is insufficient, in itself, to trigger individual criminal liability for individual aid providers absent proof that the relevant assistance was specifically directed towards criminal activities.[19] The Appeals Chamber underscores, however, that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts. If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces.[20] Similarly, aid from one military force specifically directed towards crimes committed by another force can also trigger aiding and abetting liability. However, as explained above, a sufficient link between the acts of an individual accused of aiding and abetting a crime and the crime he or she is charged with assisting must be established for the accused individual to incur criminal liability. […]

See also paras 46-47, 49-55, 57-67.

[1] See Blagojević and Jokić Appeal Judgement, para. 189. See also Tadić Appeal Judgment, para. 229. The Appeals Chamber recalls that specific direction may be addressed implicitly in the context of analysing substantial contribution. See Blagojević and Jokić Appeal Judgement, para. 189.

[2] See [Perišić Appeal Judgement], paras 26-27; Blagojević and Jokić Appeal Judgement, para. 189; Tadić Appeal Judgement, para. 229. See also Rukundo Appeal Judgement, paras 48-52. The Appeals Chamber recalls that proof of specific direction does not require that relevant acts are the proximate cause of a charged crime: it is well-settled in the Tribunal’s and ICTR’s jurisprudence that it is not necessary to prove a causal nexus between an aider and abettor and the actions of principal perpetrators. See Mrkšić and [ljivančanin Appeal Judgement, para. 81; Blaškić Appeal Judgment, para. 48; Rukundo Appeal Judgement, paras 50-52.

[3] These other elements of aiding and abetting liability are substantial contribution, knowledge that aid provided assists in the commission of relevant crimes, and awareness of the essential elements of these crimes. See Lukić and Lukić Appeal Judgement, paras 422, 428.

[4] See Lukić and Lukić Appeal Judgement, paras 437-451 (Sredoje Lukić provided practical assistance through his armed presence during the commission of cruel treatment and inhumane acts against unarmed Muslim civilians and was present during the forced transfer of unarmed civilians to a house that was subsequently locked and set on fire); Mrkšić and [ljivančanin Appeal Judgement, paras 5, 104, 193, p. 169 ([ljivančanin witnessed and failed to prevent torture of prisoners of war he was responsible for); Limaj et al. Trial Judgement, paras 631-632, 656, 658; Limaj et al. Appeal Judgement, paras 122-123 (Bala was present during the torture and cruel treatment of civilians at a prison camp); Blagojević and Jokić Appeal Judgement, paras 3-4, 69, 75, 79, 112, 125-135, 150-157, 164-175, 180, 196-200 (Blagojević, a colonel in the Bratunac Brigade, was present at Brigade headquarters and allowed the Brigade’s resources and personnel to be used in committing murder, persecutions, mistreatment, and forcible transfer of Muslim men detained in Bratunac; Jokić, a major in the Zvornik Brigade, committed Brigade resources to dig mass graves and otherwise facilitate murder, extermination, and persecutions at nearby sites); Brđanin Appeal Judgement, paras 2, 227-228, 311-320, 344-351 (as President of the Autonomous Region of Krajina Crisis Staff, Brđanin aided the commission of crimes by Bosnian Serb forces in the region under his authority); Simić Appeal Judgement, paras 3, 114-118, 132-137, 148-159, 182-191 (Simić assisted persecutions of non-Serb civilians in Bosanski [amac municipality, where he was the highest ranking civilian official); Naletilić and Martinović Appeal Judgement, paras 489-538 (Martinović assisted the murder of a detainee by encouraging the detainee’s mistreatment, preventing the detainee from returning from Martinović’s unit to prison, actively covering up the detainee’s disappearance, and giving direct orders to his soldiers regarding disposal of the detainee’s corpse); Kvočka et al. Appeal Judgement, paras 562-564 (Žigić led a prisoner to a room in which he was tortured); Krstić Appeal Judgement, paras 61-62, 135-144 (Krstić permitted troops and other resources under his control to assist in killings of Bosnian Muslims); Vasiljević Appeal Judgement, paras 134-135, 143, 147 (Vasiljević personally guarded seven Muslim men and prevented them from escaping); Furundžija Appeal Judgement, paras 124-127 (Furundžija assisted criminal acts through his presence and personal interrogation of prisoners); Aleksovski Appeal Judgement, paras 36, 165-173 (Aleksovski, a prison warden, assisted in the mistreatment of detainees in and around his prison facility). See also Ntawukulilyayo Appeal Judgement, paras 208-217, 226-229, 243, 246 (Ntawukulilyayo assisted criminal acts by personally encouraging refugees to seek shelter at Kabuye Hill and then transporting soldiers to help kill these refugees); Kalimanzira Appeal Judgement, paras 81, 126, 243 (Kalimanzira encouraged refugees to seek shelter at Kabuye Hill and subsequently accompanied armed individuals who killed some of these refugees); Renzaho Appeal Judgement, paras 2, 68, 75, 84-85, 93, 99-100, 104, 108, 253-255, 336-338, 622 (in his capacity as Prefect of Kigali-Ville, Renzaho aided various crimes in Kigali including murder by, inter alia, facilitating weapons distribution and supporting roadblocks); Rukundo Appeal Judgement, paras 3, 39, 51-54, 92, 115, 176-177, 218, 269-270 (Rukundo assisted the killings of Tutsis by, inter alia, identifying victims to principal perpetrators who then committed genocide and extermination); Karera Appeal Judgement, paras 298, 322-323 (Karera, while at a roadblock, instructed principal perpetrators that a man he identified as a Tutsi be detained and taken away; the man was subsequently murdered); Seromba Appeal Judgement, paras 77, 183-185, 206, 240 (Seromba assisted the murder of Tutsis by expelling them from his parish); Nahimana et al. Appeal Judgement, paras 668-672, 965-968 (Ngeze set up, manned, and supervised roadblocks, assisting in identification of Tutsi civilians who were then killed); Muhimana Appeal Judgement, paras 148, 165-177, 185-192 (Muhimana personally encouraged principal perpetrators to rape Tutsi women); Ndindabahizi Appeal Judgement, para. 4, p. 48 (Ndindabahizi transported attackers to a crime site and distributed weapons used to kill Tutsis); Gacumbitsi Trial Judgement, paras 286-287, 314; Gacumbitsi Appeal Judgement, paras 83-98, 123-125, 207 (Gacumbitsi personally encouraged principal perpetrators to massacre Tutsis and expelled two Tutsi tenants who were subsequently killed); Semanza Appeal Judgement, paras 263-279, 310 (Semanza was present during, participated in, and directed others to participate in mass killings of Tutsis); Ntakirutimana and Ntakirutimana Appeal Judgement, paras 524-537, p. 187 (Elizaphan and Gérard Ntakirutimana assisted attacks on Tutsis by, inter alia, providing transport to attackers and shooting weapons); Rutaganda Appeal Judgement, paras 294-295, 308-341 (Rutaganda aided killings of Tutsis by, inter alia, distributing weapons to principal perpetrators); Kayishema and Ruzindana Appeal Judgement, paras 188-190, 201-202, 242-247, 251-262, 372 (Ruzindana and Kayishema were present at massacres of Tutsis which they, inter alia, orchestrated and directed).

[5] See, e.g., Lukić and Lukić Appeal Judgement, paras 419-461; Kvočka et al. Appeal Judgement, paras 563-564; Furundžija Appeal Judgement, paras 124-127. See also Kayishema and Ruzindana Appeal Judgement, paras 201-202.

[6] The Appeals Chamber underscores that the requirement of explicit consideration of specific direction does not foreclose the possibility of convictions in cases of remoteness, but only means that such convictions require explicit discussion of how evidence on the record proves specific direction. Cf. Mrkšić and [ljivančanin Appeal Judgement, para. 81 (finding that in the context of the actus reus of aiding and abetting, substantial contribution may be geographically and temporally separated from crimes of principal perpetrators).

[7] See Kupreškić et al. Appeal Judgement, paras 275-277 (finding that a six-month delay between an appellant being observed unloading weapons and a subsequent attack reduced the likelihood that these weapons were directed towards assisting in this attack).

[8] See [Perišić Appeal Judgement], paras 26-27.

[9] Cf. Trial of Bruno Tesch and Two Others (The Zyklon B Case), British Military Court Hamburg 1946, in United Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals 93-102 (1947) (finding two defendants guilty of assisting killings of concentration camp detainees by providing poison gas, despite arguments that the gas was to be used for lawful purposes, after reviewing evidence that defendants arranged for S.S. units to be trained in using this gas to kill humans in confined spaces).

[10] See [Perišić Appeal Judgement], paras 68-69, 71.

[11] Mrkšić and [ljivančanin Appeal Judgement, para. 159. See also Orić Appeal Judgement, para. 43; Blaškić Appeal Judgement, para. 49.

[12] See [Perišić Appeal Judgement], paras 25-36. Judge Liu dissents from the analysis in this sentence.

[13] See [Perišić Appeal Judgement], para. 24.

[14] See [Perišić] Trial Judgement, paras 1580-1627.

[15] See [Perišić Appeal Judgement], paras 37-40.

[16] See Krajišnik Appeal Judgement, para. 202; Stakić Appeal Judgement, para. 219.

[17] See [Perišić Appeal Judgement], paras 37, 48. The Appeals Chamber, Judge Liu dissenting, recalls that specific direction establishes a culpable link between an accused aider and abettor and relevant crimes. See [Perišić Appeal Judgement], para. 37.

[18] See Krajišnik Appeal Judgement, para. 202; Stakić Appeal Judgement, para. 219.

[19] Cf. [Perišić Appeal Judgement], para. 53. Judge Liu dissents with respect to the specific direction requirement.

[20] Relevant forms of liability, in addition to aiding and abetting, could include JCE and superior responsibility.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

317. The actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2]

318. Contrary to the Appellant’s contention, the specific identification of the perpetrators, who were identified in the Trial Judgement as Interahamwe, was not required for a finding that the Appellant instigated the killing of Gakuru. In any event, the Trial Chamber did identify the perpetrators. […] While it would have been preferable for the Trial Chamber to explicitly state that it identified the perpetrators of Gakuru’s murder as being the Interahamwe to whom the Appellant indicated that Gakuru was an “Inyenzi” and who received the order to arrest him, this omission does not amount to an error.

319. However, based on the Trial Chamber’s factual findings, the Trial Chamber could not have reasonably concluded that the Appellant prompted the perpetrators to kill Gakuru. The Trial Chamber made no factual findings supporting such a conclusion. It merely concluded that the Appellant had informed the Interahamwe who later killed Gakuru that he was an “Inyenzi” and ordered them to arrest him. The Trial Chamber should have further explained how, on the basis of these factual findings, it inferred that the Appellant had prompted the Interahamwe to kill Gakuru.  In the absence of such an explanation, the Appeals Chamber finds that the Trial Chamber erred in convicting the Appellant for instigating Gakuru’s murder.

[1] Nahimana et al. Appeal Judgement, para. 480; Ndindabahizi Appeal Judgement, para. 117; Kordić and Čerkez Appeal Judgement, para. 27.

[2] Nahimana et al. Appeal Judgement, para. 480; Gacumbitsi Appeal Judgement, para. 129; Kordić and Čerkez Appeal Judgement, para. 27. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

32. The Appeals Chamber recalls that when noting Article 49 (1) of Additional Protocol I, the Galić Appeals Chamber held that the crime of terror can comprise attacks or threats of attacks against the civilian population.[1] It did not limit the possible consequences of such attacks to death or serious injuries among the victims.[2] Rather, it concentrated on the assessment of whether the allegations before it would qualify for the crime of terror under international customary law.

33. The Appeals Chamber finds that the Trial Chamber misinterpreted the Galić jurisprudence by stating that “actual infliction of death or serious harm to body or health is a required element of the crime of terror”, and thus committed an error of law.Causing death or serious injury to body or health represents only one of the possible modes of commission of the crime of terror, and thus is not an element of the offence per se. What is required, however, in order for the offence to fall under the jurisdiction of this Tribunal, is that the victims suffered grave consequences resulting from the acts or threats of violence;[4] such grave consequences include, but are not limited to death or serious injury to body or health. Accordingly, because the Trial Chamber established in the present case that all the incidents imputed to the SRK constituted unlawful attacks against civilians, and thus caused death or serious injury to body or health of civilians,[5] the threshold of gravity required for the crime of terror based on those incidents has been met. Whereas the nature of the acts of violence or threats thereof constitutive of the crime of terror can vary,[6] the Appeals Chamber is satisfied that the actus reus of the crime of terror has been established in this case and does not find it necessary to explore the matter any further.

34. As for the Prosecution’s submission that the crime of terror has no result requirement provided that the underlying acts or threats of violence are “capable of spreading terror”,[7] the Appeals Chamber notes that the travaux préparatoires to Additional Protocol I show that there had been attempts among the delegations to introduce “acts capable of spreading terror” into the language of the prohibition enshrined under Article 51(2) thereof.[8] However, these proposals were not reflected in the final text of the provision.[9] In addition, the Appeals Chamber considers that the definition of the actus reus of the crime of terror suggested by the Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave consequences for the civilian population and thus does not per se render the violation of the said prohibition serious enough for it to become a war crime within the Tribunal’s jurisdiction.

35. The Appeals Chamber further recalls that the Galić Appeal Judgement clarifies that while “extensive trauma and psychological damage form part of the acts or threats of violence”, the “actual terrorisation of the civilian population is not an element of the crime”.[10] It should be noted, however, that evidence of actual terrorisation may contribute to establishing other elements of the crime of terror.[11] The Trial Chamber in the instant case established that the incidents had had a psychological impact on the population of Sarajevo.[12] In the circumstances of the case, such psychological impact also satisfies the required gravity threshold.[13]

[1] Galić Appeal Judgement, para 102.

[2] Galić Appeal Judgement, para 102.

[3] Trial Judgement [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Judgement, 12 December 2007], paras 876, 880.

[4] In paragraph 94 of its Tadić Jurisdiction Decision [Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], the Appeals Chamber held that for criminal conduct to fall within the scope of Article 3 of the Statute, the following four conditions must be satisfied:

“(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […];

(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby “private property must be respected” by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”

[5] Trial Judgement, paras 911-913, 953.

[6] Galić Appeal Judgement, para 102.

[7] AT. 122-123.

[8] Travaux Préparatoires, Vol. III, CDDH/III/38, p. 203, CDDH/III/51, p. 206; Vol. XIV, CDDH/III/SR. 8, pp. 60, 64.

[9] The committee entrusted with the consideration of draft Article 51 submitted the following with regard to the prohibition of spreading terror: “The prohibition of 'acts or threats of violence which have the primary object of spreading terror is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror' that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.” (Galić Appeal Judgement, para. 103, citing Travaux préparatoires, Vol. XIV, CDDH/215/Freq., p. 274).

[10] Galić Appeal Judgement, paras 102, 104.

[11] See Galić Appeal Judgement, para. 107.

[12] Trial Judgement, paras 740-746, 910.

[13] See supra, para. 33. See also the Prosecution’s oral submissions in this regard (AT. 118).

Download full document
ICTY Statute Article 3 Other instruments Additional Protocol I: Article 49(1); 51(2).
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

267. […] The Appeals Chamber recalls that the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of “instructing”, pivotal to the understanding of the question of “ordering”, requires “a positive action by the person in a position of authority”.[1] The Appeals Chamber accepts that an order does not necessarily need to be explicit in relation to the consequences it will have.[2] […]

290. The Appeals Chamber recalls that ordering requires that a person in a position of de jure or de facto authority instructs another person to commit a crime.[3] It does not, however, require the physical presence of the perpetrator at the site of the crime.

[1] Galić Appeal Judgement, para. 176. See also, Nahimana et al. Appeal Judgement, para. 481, referring to Gacumbitsi Appeal Judgement, para. 182; Kamuhanda Appeal Judgement, para. 75; Semanza Appeal Judgement, para. 361; Ntagerura et al. Appeal Judgement, para. 365; Kordić and Čerkez Appeal Judgement, paras 28-30.

[2] Cf. Nahimana et al. Appeal Judgement, para. 481: “Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.” See also, Galić Appeal Judgement, paras 152 and 157; Kordić and Čerkez Appeal Judgement, para. 30; Blaškić Appeal Judgement, para. 42.

[3] Trial Judgement, para. 957. See Kordić and Čerkez Appeal Judgement, para. 28.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

150.     The Appeals Chamber further recalls that “encouragement” is a form of conduct which may lead to criminal responsibility for aiding and abetting a crime.[1] The ICTY Appeals Chamber has held that “the encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a ‘silent spectator’ can be construed as the tacit approval or encouragement of the crime.”[2] Ngirabatware points to the fact that he was not found to have been present when the attacks and killings of Tutsis were taking place. The Appeals Chamber finds Ngirabatware’s argument to be misguided. It follows from the Trial Chamber’s relevant finding that it did not consider Ngirabatware to be a “silent spectator” who tacitly approved and encouraged the crime by his mere presence and authority. Rather, the Trial Chamber found that the encouragement provided by Ngirabatware was explicit in that, as an influential figure in Nyamyumba Commune, he distributed weapons to the Interahamwe while exhorting them to kill Tutsis.[3] In such circumstances, whether Ngirabatware was present at the crime scene is inconsequential for his responsibility for aiding and abetting to arise.[4] In view of the evidence considered and relied upon by the Trial Chamber, Ngirabatware’s claim that the Interahamwe who were manning the roadblock and committed the killings were unaware of the encouragement he provided is similarly without merit.[5]

[1] Br|anin Appeal Judgement, para. 277, referring to Tadi} Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 162, Vasiljević Appeal Judgement, para. 102, Bla{ki} Appeal Judgement, para. 48, Kvočka et al. Appeal Judgement, para. 89, Simi} Appeal Judgement, para. 85. See also Kalimanzira Appeal Judgement, para. 74; Muvunyi I Appeal Judgement, para. 80; Kayishema and Ruzindana Appeal Judgement, paras. 201-202.

[2] Br|anin Appeal Judgement, para. 277, referring to Aleksovski Trial Judgement, para. 87, Kayishema and Ruzindana Appeal Judgement, paras. 201-202; Akayesu Trial Judgement, para. 706; Bagilishema Trial Judgement, para. 36; Furundžija Trial Judgement, para. 207.

[3] See Trial Judgement, para. 1337. Cf. Renzaho Appeal Judgement, para. 337.

[4] See Mrk{i} and [ljivan~anin Appeal Judgement, para. 81 (“The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and the location at which the actus reus takes place may be removed from the location of the principal crime.”).

[5] The Appeals Chamber is also not persuaded by Ngirabatware’s claim that he lacked sufficient notice that the distribution of weapons had encouraged the killings of Tutsis. See Appeal Brief, para. 40. Paragraph 16 of the Indictment explicitly alleged that Ngirabatware distributed weapons thereby aiding and abetting the killings of Tutsis. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

110. […] While motive is not an element of the mens rea of a joint criminal enterprise, the existence ‑ and scope ‑ of a common plan is part of its actus reus. Hence, the targeting of these specific groups was part of the actus reus of the joint criminal enterprise charged in the Indictment.[1] […]

[1] Similarly, the Appeals Chamber held in Stakić that the “common purpose consisted of a discriminatory campaign to ethnically cleanse the Municipality of Prijedor by deporting and persecuting Bosnian Muslims and Bosnian Croats in order to establish Serbian control (‘Common Purpose’).” (Stakić Appeal Judgement, para. 73, emphasis added). Consequently, when examining Mr. Stakić’s intent to further the Common Purpose, the Appeals Chamber considered the Trial Chamber’s findings that Mr. Stakić was working together with other participants in the joint criminal enterprise “to implement the SDS-initiated plan to consolidate Serb authority and power within the municipality”, and that “[h]e was aware that he could frustrate the objective of achieving a Serbian municipality […]” (ibid., para. 82). Hence, the Common Purpose was not limited to the commission of statutory crimes, but also encompassed the goal that was to be achieved by the commission of these crimes, or, in other words, a motive.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 HATEGEKIMANA Idelphonse
(ICTR-00-55B-A)

162. The Appeals Chamber is satisfied that the Trial Chamber reasonably relied on Witness Sezirahiga’s testimony in finding that the actus reus of rape was established. It follows from the Trial Judgement that Witness Sezirahiga observed the commission of the crime from a distance of four meters.[1] Although the witness was not specifically asked about the penetration of his daughter, he clearly and constantly used the word “rape” throughout his testimony to describe what happened to her.[2] The Appeals Chamber is satisfied that this term was reasonably understood in the context of this case as sexual penetration by the witness, the Trial Chamber, and the parties.[3] In this respect, the Appeals Chamber notes that Hategekimana did not dispute at trial that Nura Sezirahiga was raped.[4] The Appeals Chamber therefore finds no merit in his challenge to this aspect of the Trial Chamber’s finding on appeal.

[1] Trial Judgement, para. 459.

[2] T. 6 April 2009 pp. 8, 41. In addition, as accepted by the Trial Chamber, Witness Sezirahiga clearly recounted that Murigande immobilized his daughter during the rape. See T. 6 April 2009 p. 41; Trial Judgement, para. 461. See also infra para. 199.

[3] The Appeals Chamber recalls that in the Kordić and Čerkez case, the ICTY Appeals Chamber considered that a trial chamber reasonably found that a woman was sexually assaulted even though the victim’s testimony was limited to answering in the affirmative to a question posed by the Prosecution as to whether or not she had suffered sexual assault. See Kordić and Čerkez Appeal Judgement, para. 462.

[4] Rather, Hategekimana focused principally on the credibility of the evidence implicating him and soldiers from the Ngoma Military Camp in the attack. See Defence Closing Brief [Mémoire final de la défence d’Ildephonse Hategekimana, 1 February 2012 (the Englsih translation was filed on 23 March 2012)], paras. 455-473; T. 26 April 2010 p. 61. The Appeals Chamber further observes that Hategekimana referred to the perpetrator of the crime as a “rapist” in his Closing Brief. See Defence Closing Brief, para. 462 (“It emerges clearly from the testimony of this witness that although he claimed that his daughter, Nura Sezirahiga, was raped by a soldier, on the orders of Michel Muligande, nothing in his testimony identifies the rapist. In the presentation of its evidence, the Prosecution was never able to prove the identity of the person who raped the witness’s daughter.”).

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

213. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence. It is clear that the Trial Chamber found that Kalimanzira was in a position of authority.[2] The Trial Chamber, however, made no findings that he instructed anyone at Kabuye hill to commit a crime. Instead, it follows from the Trial Judgment that Kalimanzira’s role during his time at Kabuye hill involved “providing armed reinforcements.”[3] While it is possible that an order to attack could have been inferred from the surrounding circumstances, the Appeals Chamber is not satisfied that the Prosecution has demonstrated that this is the only reasonable inference from the evidence.

[1] Semanza Appeal Judgement, paras. 361, 363.

[2] Trial Judgement, paras. 97-99.

[3] Trial Judgement, para. 393.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

424. The Appeals Chamber has previously considered within the discussion of the actus reus of aiding and abetting the finding that an act or omission of an aider or abettor be “specifically directed” toward the furtherance of the crimes of the principal perpetrators.[1] The Appeals Chamber recalls, however, that “specific direction has not always been included as an element of the actus reus of aiding and abetting.”[2] It further recalls its conclusion that such a finding of specific direction “will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime”.[3] In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”[4] and finds that there is no “cogent reason”[5] to depart from this jurisprudence.

[1] Blagojević and Jokić Appeal Judgement, para. 127; Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, paras 45-46; Vasiljević Appeal Judgement, para. 102; Tadić Appeal Judgement, para. 229. See also Rukundo Appeal Judgement, para. 210; Ntagerura et al. Appeal Judgement, para. 370; Muvunyi I Appeal Judgement, para. 79; Seromba Appeal Judgement, para. 139.

[2] Blagojević and Jokić Appeal Judgement, para. 189.

[3] Blagojević and Jokić Appeal Judgement, para. 189.

[4] Mrkšić and [ljivančanin Appeal Judgement, para. 159, confirming Blagojević and Jokić Appeal Judgement, para. 189.

[5] Aleksovski Appeal Judgement, para. 107. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

455. The Appeals Chamber recalls that a persecutory act must be discriminatory in fact for the crime of persecutions to be established.[1] The Trial Chamber clearly acknowledged this legal requirement in its statement of the law, when it observed that a persecutory act or omission must “discriminate in fact”.[2] Sredoje Lukić’s argument therefore fails.

[1] Kvočka et al. Appeal Judgement, para. 320; Krnojelac Appeal Judgement, para. 185.

[2] Trial Judgement, para. 992. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber first delineated the crime:

69. The crime charged under Count 1 of the Indictment pursuant to Article 3 of the Statute and on the basis of Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II is the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. It encompasses the intent to spread terror when committed by combatants[1] in a period of armed conflict. The findings of the Appeals Chamber with respect to grounds five, sixteen and seven will therefore not envisage any other form of terror.

The Appeals Chamber then determined that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties (paras 87-90). It added – Judge Schomburg dissenting – that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, from at least the period relevant to the Indictment (paras 91-98).

Finally, the Appeals Chamber identified the elements of this crime (see para. 102 for the actus reus and paras 103-104 for the mens rea).

[1] See Kordić and Čerkez Appeal Judgement, para. 50.

Download full document
ICTY Statute Article 3 Other instruments Additional Protocol I: Article 51(2).
Additional Protocol II: Article 13(2).
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

425. The Appeals Chamber notes that the physical presence of an aider and abettor at or near the scene of the crime may be a relevant factor in cases of aiding and abetting by tacit approval.[1] Further, the actus reus of aiding and abetting may be fulfilled remotely.[2] It is also well established that the actus reus of aiding and abetting may be fulfilled before, during, or after the principal crime has been perpetrated.[3] Thus, Sredoje Lukić’s submission that the Trial Chamber erroneously construed the actus reus of aiding and abetting is dismissed.

[1] Brđanin Appeal Judgement, paras 273, 277. See also Kayishema and Ruzindana Appeal Judgement, paras 201-202.

[2] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, para. 48.

[3] Blagojević and Jokić Appeal Judgement, para. 132. See also Blaškić Appeal Judgement, para. 48; Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.

Download full document
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

[1] Trial Judgement, paras 829, 834.

[2] See Trial Judgement, para. 386.

[3] See Trial Judgement, para. 387.

[4] Cf. Trial Judgement, para. 387.

[5] Trial Judgement, para. 388.

[6] Trial Judgement, para. 388.

[7] Blaškić Appeal Judgement, para. 42.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-A)

104. Turning to the question of specific direction, the Appeals Chamber recalls that, in the Šainović et al. Appeal Judgement, which was issued subsequent to the Perišić Appeal Judgement, it clarified that specific direction is not an element of aiding and abetting liability.[1] In arriving at this conclusion, it carefully reviewed the jurisprudence of the Tribunal and the ICTR in this regard[2] and re-examined the elements of aiding and abetting liability under customary international law.[3] The Appeals Chamber then observed that, neither in the jurisprudence of the Tribunal and the ICTR nor under customary international law, had specific direction been considered to be an element of aiding and abetting liability.[4] As a result, it rejected the approach adopted in the Perišić Appeal Judgement, which required specific direction as an element of the actus reus of aiding and abetting,[5] and held that this approach was “in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law”.[6] The Appeals Chamber re-affirmed that, “under customary international law, the actus reus of aiding and abetting ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’” and that “[t]he required mens rea is ‘the knowledge that these acts assist the commission of the offense’.”[7]

105. Subsequently, in the Popović et al. Appeal Judgement, the Appeals Chamber re-affirmed that “‘specific direction’ is not an element of aiding and abetting liability under customary international law”.[8]

106. Accordingly, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, finds that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime. This also means that the Trial Chamber erred in law in making a finding on a substantial effect of the contributory acts contingent upon establishing specific direction, by holding that, when assessing whether the acts carried out by the aider and abettor have a substantial effect on the perpetration of a crime, the Trial Chamber must find that they are specifically directed to assist that crime.[9]

[…]

128. Finally, Judge Afanđe dissenting, if the new trial chamber were to examine the responsibility of Stanišić and Simatović for aiding and abetting the crimes, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, instructs it to apply the correct law on aiding and abetting liability as set out above, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[10] In this regard, the Appeals Chamber notes that the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law,[11] as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the Tribunal has to apply.[12] Accordingly, the Appeals Chamber dismisses Simatović’s argument in this respect.[13]

[1] Šainović et al. Appeal Judgement, para. 1649.

[2] Šainović et al. Appeal Judgement, paras 1623-1625, referring to Tadić Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 163, Gotovina and Markač Appeal Judgement, para. 127, Brđanin Appeal Judgement, para. 151, Krstić Appeal Judgement, para. 137, Čelebići Appeal Judgement, para. 352, Blaškić Appeal Judgement, paras 45-46 (quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249), Krnojelac Appeal Judgement, paras 33, 37, Kvočka et al. Appeal Judgement, paras 89-90, Blagojević and Jokić Appeal Judgement, paras 127, 186, 189, 191, 193-194, Simić Appeal Judgement, para. 85, Orić Appeal Judgement, para. 43, Vasiljević Appeal Judgement, paras 102, 134-135, Kupreškić et al. Appeal Judgement, paras 254, 283, Karera Appeal Judgement, para. 321, Nahimana et al. Appeal Judgement, paras 482, 672, Kalimanzira Appeal Judgement, para. 74, Ntawukulilyayo Appeal Judgement, paras 214, 216, Rukundo Appeal Judgement, para. 52, Muvunyi I Appeal Judgement, para. 79, Seromba Appeal Judgement, para. 139, Muhimana Appeal Judgement, para. 189, Ntagerura et al. Appeal Judgement, para. 370, Ntakirutimana Appeal Judgement, para. 530. See also Šainović et al. Appeal Judgement, paras 1619, 1650, referring to Mrkšić and [ljivančanin Appeal Judgement, para. 159, Lukić and Lukić Appeal Judgement, para. 424. See further Šainović et al. Appeal Judgement, para. 1622.

[3] Šainović et al. Appeal Judgement, paras 1626-1648. The Appeals Chamber examined the jurisprudence derived from cases which dealt with crimes committed during the Second World War and found that, in none of these relevant cases, was “specific direction” required as a distinct element. See Šainović et al. Appeal Judgement, paras 1627-1642. The Appeals Chamber also reviewed national law and held that requiring specific direction for aiding and abetting liability is not a general, uniform practice in national jurisdictions. See Šainović et al. Appeal Judgement, paras 1643-1646. Finally, the Appeals Chamber examined international instruments (the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996 and the ICC Statute) and found no support for the proposition that specific direction is an element of aiding and abetting liability under customary international law. See Šainović et al. Appeal Judgement, paras 1647-1648. See also Šainović et al. Appeal Judgement, para. 1622.

[4] Šainović et al. Appeal Judgement, paras 1623-1625, 1649.

[5] Perišić Appeal Judgement, para. 36.

[6] Šainović et al. Appeal Judgement, para. 1650.

[7] Šainović et al. Appeal Judgement, para. 1649, quoting Blaškić Appeal Judgement, para. 46, in turn quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. Accordingly, the Appeals Chamber confirmed that “the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability”. See Šainović et al. Appeal Judgement, para. 1650 (internal references omitted).

[8] Popović et al. Appeal Judgement, para. 1758, quoting [ainović et al. Appeal Judgement, para. 1649. See also Popović et al. Appeal Judgement, paras 1764, 1783.

[9] Trial Judgement, para. 1264. In this regard, the Appeals Chamber notes that the Trial Chamber took a slightly different approach from the Perišić Appeal Judgement, which considered substantial contribution by an aider and abettor to be a requirement independent from, and in addition to, specific direction, and stated that substantial contribution may be one of the factors for determining whether specific direction is established. See Perišić Appeal Judgement, paras 38-39. In the present case, the Prosecution asserts that, even accepting that specific direction constitutes an element of the actus reus of aiding and abetting, the Trial Chamber misapplied the legal test for aiding and abetting as set out in the Perišić Appeal Judgement, by making a finding of substantial contribution contingent upon establishing specific direction. See Prosecution Appeal Brief [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A, Prosecution Appeal Brief, 11 September 2013 (confidential; public redacted version filed on 25 September 2013)], para. 161. See also Prosecution Appeal Brief, paras 154-155. Given that the Appeals Chamber has found that specific direction is not an element of aiding and abetting liability, the Prosecution’s argument is moot to the extent that it concerns the Trial Chamber’s misapplication of the legal test as set out in the Perišić Appeal Judgement.

[10] See supra, paras 104-106.

[11] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81.

[12] See supra, paras 104-105.

[13] See supra, para. 119. 

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NZABONIMANA Callixte
(ICTR-98-44D-A)

146.  […] The Appeals Chamber is also not convinced that the Trial Chamber was specifically required to determine that assailants of the Night and Day Attacks heard what he said at the Cyayi centre. The Appeals Chamber recalls that the actus reus of “instigating” is to prompt another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] Similarly, it is not required that the individuals who were instigated be the same as those who committed the crimes.[3]

[1] See, e.g., Nchamihigo Appeal Judgement, para. 188; Karera Appeal Judgement, para. 317; Kordić and Čerkez Appeal Judgement, para. 27.

[2] See, e.g., Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27.

[3] The Appeals Chamber observes that, while previous cases have examined whether individuals who were instigated were the same as those who committed the crimes (see Karera Appeal Judgement, para. 318; Nahimana et al. Appeal Judgement, para. 513; Ndindabahizi Appeal Judgement, para. 116. See also Boškoski and Tarčulovski Appeal Judgement, para. 75), the Appeals Chamber has not explicitly made it a requirement under instigation. 

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

1021.  The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] It is this element of “massiveness” that distinguishes the crime of extermination from the crime of murder.[2] However, the expression “on a large scale” does not suggest a strict numerical approach with a minimum number of victims.[3] While extermination as a crime against humanity has been found in relation to the killing of thousands, it has also been found in relation to far fewer killings.[4]

1022.  The assessment of “large scale” is made on a case‑by‑case basis, taking into account the circumstances in which the killings occurred.[5] The Appeals Chamber has found that relevant factors include but are not limited to: (i) the time and place of the killings;[6] (ii) the selection of the victims and the manner in which they were targeted;[7] (iii) the type of victims;[8] (iv) whether the killings were aimed at the collective group rather than victims in their individual capacity;[9] and (v) the population density of the victims’ area of origin.[10] These factors do not constitute elements of the crime of extermination as a crime against humanity, but rather are factors which a trier of facts may take into account when assessing whether or not the “large scale” element is satisfied.[11] Moreover, separate killing incidents may be aggregated for the purpose of meeting the “large scale requirement” if the killings are considered to be part of one and the same operation.[12] Whether killings are part of the same operation must be assessed on a case‑by‑case basis taking into account the circumstances in which they occurred.[13] As held by the ICTR Appeals Chamber, collective consideration of distinct events committed in different locations, in different circumstances, by different perpetrators, over an extended period of time cannot satisfy the requirement of killing on a large scale.[14]

[…]

1027.  […] [T]he Appeals Chamber considers that while a trial chamber may take into consideration the time frame when assessing whether killings are part of the same operation,[15] the jurisprudence does not establish specific time limits as a requirement for extermination.[16] Rather, as set out above, it is the collective consideration of factors, including the time frame, which should be taken into account in determining whether the killings formed part of the same operation and thus whether they may be aggregated.[17] […]

1028.  Further, the Appeals Chamber notes that Župljanin offers no support for his statement that killings may only be aggregated when at least one of the incidents in itself is considered large scale,[18] and it finds no support for this proposition in the Tribunal’s case law.[19] […]

[1] Tolimir Appeal Judgement, para. 146; Lukić and Lukić Appeal Judgement, para. 536, referring to Stakić Appeal Judgement, para. 259, Ntakirutimana and Ntakirutimana Appeal Judgement, para. 516; Karemera and Ngirumpatse Appeal Judgement, para. 660. See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 44.

[2] Tolimir Appeal Judgement, para. 146; Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, para. 260; Ntakirutimana and Ntakirutimana Appeal Judgement, para. 516. See Trial Judgement, vol. 1, para. 44.

[3] Lukić and Lukić Appeal Judgement, para. 537; Stakić Appeal Judgement, para. 260; Ntakirutimana and Ntakirutimana Appeal Judgement, para. 516.

[4] Lukić and Lukić Appeal Judgement, para. 537. In the Lukić and Lukić case, the Appeals Chamber found that the killing of 59 persons was sufficiently large so as to constitute extermination (Lukić and Lukić Appeal Judgement, para. 543). In the Akayesu case, the ICTR Appeals Chamber upheld the finding that the killing of 16 persons constituted extermination (see Akayesu Appeal Judgement, paras 423-424; Akayesu Trial Judgement, paras 737-744).

[5] Lukić and Lukić Appeal Judgement, para. 538, referring to Martić Trial Judgement, para. 63, Stakić Trial Judgement, para. 640, Brđanin Trial Judgement, para. 391, Blagojević and Jokić Trial Judgement, para. 57; Krajišnik Trial Judgement, para. 716, Nahimana et al. Trial Judgement, para. 1061. See Brđanin Appeal Judgement, para. 472, finding “that the scale of the killings, in light of the circumstances in which they occurred, meets the required threshold of massiveness for the purposes of extermination” (emphasis added).

[6] Lukić and Lukić Appeal Judgement, para. 538.

[7] Lukić and Lukić Appeal Judgement, para. 538.

[8] Lukić and Lukić Appeal Judgement, para. 542.

[9] Lukić and Lukić Appeal Judgement, para. 538.

[10] Lukić and Lukić Appeal Judgement, paras 539, 542-543.

[11] Lukić and Lukić Appeal Judgement, para. 542.

[12] Tolimir Appeal Judgement, para. 147; Karemera and Ngirumpatse Appeal Judgement, paras 661-662; Bagosora and Nsengiyumva Appeal Judgement, para. 396.

[13] Cf. Tolimir Appeal Judgement, para. 149.

[14] Karemera and Ngirumpatse Appeal Judgement, para. 661; Bagosora and Nsengiyumva Appeal Judgement, para. 396.

[15] See supra [Stanišić and Župljanin Appeal Judgement]], para. 1022.

[16] See Tolimir Appeal Judgement, para. 147, stating that “[i]]t is not required that that the killings be on a vast scale in a concentrated location over a short period of time.” See also Karemera and Ngirumpatse Appeal Judgement, para. 661; Bagosora and Nsengiyumva Appeal Judgement, para. 396.

[17] Tolimir Appeal Judgement, para. 147; Karemera and Ngirumpatse Appeal Judgement, para. 661; Bagosora and Nsengiyumva Appeal Judgement, para. 396. See supra [Stanišić and Župljanin Appeal Judgement]], para. 1022.

[18] See Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 228.

[19] The Appeals Chamber notes that in the Brđanin case, the Trial Chamber found killings occurring in separate incidents between 22 April 1992 and 18 December 1992 to collectively amount to extermination (10 victims at Manjača detention camp, 94 victims at Omarska detention camp, 20 victims at Trnopolje detention camp, 20 victims in the Sanski Most Incident, 4 victims in front of Manjača Camp, 190 victims at Room 3 Keraterm detention camp, 200 victims at Korićanske Stijene, 11 victims at Petar Kočić elementary school, 144 victims at Biljani, 45 victims at Teslić TO). It however did not convict Brđanin for extermination, and this finding was not challenged on appeal (see Brđanin Trial Judgement, paras 436-465, 467, 478-479).

Download full document
ICTR Statute Article 3(b) ICTY Statute Article 5(b)
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

918. In addition, Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts under the first category of joint criminal enterprise because the actus reus of the JCE I Crimes requires that the act inducing the departure be criminal, finds no support in the jurisprudence of the Tribunal. […] Contrary to Župljanin’s unreferenced assertion, the jurisprudence of the Tribunal does not require that persons be displaced as a result of criminal acts.[1]

[1] In relation to Župljanin’s argument that measures authorised or permitted under the law of armed conflict, such as a lawful and legitimate attack on a village, do not satisfy the actus reus of forcible transfer (Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 8.), the Appeals Chamber observes that Župljanin does not point to any evidence to suggest that the displacements in this case were justified under international humanitarian law. The Appeals Chamber therefore dismisses Župljanin’s argument as undeveloped and demonstrating no error.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such.[1] […]

[…]

473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination,[2] there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”,[3] and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”.

474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.[4]

[1] Nzabonimana Appeal Judgement, para. 255; Nahimana et al. Appeal Judgement, para. 344.

[2] See Trial Judgement, para. 5661.

[3] See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para. 896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para. 894.

[4] Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para. 370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

3327.            The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence.[1] It is not necessary to prove that the accused was present when the instigated crime was committed[2] or that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[3]

3328.            […] The Appeals Chamber considers that Kanyabashi’s commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill Tutsis.[4] In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi’s Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,[5] the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech.

[1] See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27.

[2] Nahimana et al. Appeal Judgement, para. 660. See also Boškoski and Tarčulovski Appeal Judgement, para. 125, fn. 347.

[3] See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordić and Čerkez Appeal Judgement, para. 27.

[4] The Black's Law Dictionary defines the verb “prompt” as “to incite, especially to immediate action”. See Black’s Law Dictionary, 9th edition, 2009. In the Oxford Dictionary the verb “prompt” is defined as “to incite to action; to move or induce (a person, etc.) to or to do something”. See Oxford English Dictionary, 2015.

[5] See also infra, para. 3333.

Download full document