After recalling that “proof of active participation by a superior in the criminal acts of subordinates adds to the gravity of the superior’s failure to prevent or punish those acts and may therefore aggravate the sentence”,[1] the Appeals Chamber found that:

737. It must also be recognised, however, that absence of such active participation is not a mitigating circumstance.  Failure to prevent or punish subordinate crimes is the relevant culpable conduct and lack of active participation in the crimes does not reduce that culpability.