Instigating

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

480. 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] The mens rea for this mode of responsibility is the intent to instigate another person to commit a crime or at a miminum the awareness of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated.[3]

660. The Appeals Chamber recalls that, for a defendant to be convicted of instigation to commit a crime under Article 6(1) of the Statute, it must be established that the acts charged contributed substantially to the commission of the crime, but they need not be a sine qua non condition for its commission. The Appeals Chamber further recalls that, contrary to what the Appellant appears to contend,[4] the accused does not need to be actually present when the instigated crime is committed.

[1] Ndindabahizi Appeal Judgement, para. 117; Kordić and Čerkez Appeal Judgement, para. 27.

[2] Gacumbitsi Appeal Judgement, para. 129; Kordić and Čerkez Appeal Judgement, para. 27. Once again, although the French version of the Kordić and Čerkez Judgement reads “un élément déterminant, the English version – which is authoritative – reads “factor substantially contributing to”.

[3] Kordić and Čerkez Appeal Judgement, paras. 29 and 32.

[4] See Barayagwiza Appellant’s Brief, para. 232.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

61. The Appeals Chamber recalls that the mens rea for instigating is established where the perpetrator acts with either direct intent to prompt another to commit a crime, or with awareness of the substantial likelihood that a crime will be committed in execution of that instigation.[1] Furthermore, where the crime alleged is genocide, it must also be proven that the perpetrator acted with the specific intent to destroy a protected group as such in whole or in part.[2]

[1] Kordić and Čerkez Appeal Judgement, paras. 29, 32.

[2] Seromba Appeal Judgement, para. 175.

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Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

36. The Appeals Chamber recalls that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of crimes, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges in question.[1] When the Prosecution pleads a case of “instigation”, it must precisely describe the instigating acts and the instigated persons or groups of persons.[2]

37. Paragraph 10 of the Amended Indictment does not fulfil these requirements. It merely states that the attack in Rwankeri cellule was carried out on Uwinkindi’s instigation without providing any details about when, where, and by what conduct Uwinkindi instigated this attack. Contrary to the Prosecution’s assertion, paragraph 10 of the Amended Indictment only specifies that the attack following Uwinkindi’s instigation occurred on 8 April 1994, not the act of instigation itself. Moreover, the Appeals Chamber considers that the Prosecution’s contention, that “the furtherance of the JCE” conveys by what means Uwinkindi instigated crimes, confuses the objective of his alleged instigation with the specific act or course of conduct that needed to be pleaded.

38. Apart from the broad category “armed assailants”, paragraph 10 of the Amended Indictment also does not specify to whom Uwinkindi’s instigation was directed. Furthermore, it does not indicate whether the alleged perpetrators of the killing of Paul Kamanzi were among those instigated by Uwinkindi. This manner of pleading does not inform Uwinkindi of the exact nature of the charges against him.

[1] Renzaho Appeal Judgement, para. 53; Karera Appeal Judgement, para. 292; Seromba Appeal Judgement, para. 27; Ntagerura et al. Appeal Judgement, para. 25; Blaškić Appeal Judgement, para. 213.

[2] Blaškić Appeal Judgement, para. 226.

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Notion(s) Filing Case
Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

477.    Article 6(1) of the Statute both texts of which are authoritative, provides that:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.[1]

478.    There is a glaring disparity between the English text and the French text: indeed, the English word “instigated” is translated into French as “incité”. That said, the Appeals Chamber is of the opinion that linguistically the two terms are synonymous. The Appeals Chamber points out in particular that neither text contains any suggestion or recommendation that incitement must be direct and public. Consequently, by interpreting this provision “in accordance with [its] ordinary meaning”,[2] the Appeals Chamber holds that, although instigation may, in certain circumstances, be direct and public, this does not, however, constitute a requirement. Nothing in Article 6 (1) suggests that there is such a requirement. The Appeals Chamber concurs with the Prosecution’s argument that “[…] [i]f the drafters of the Statute had wished to similarly confine instigation’ to situations where it was public and direct’, it would be reasonable to expect that they would have specifically required it”.[3] It goes without saying that “[a] special meaning shall be given to a term if it is established that the parties so intended”.[4] Such an intent has not been established.

479.    Furthermore, the Appeals Chamber is of the view that this interpretation is supported by Article 2(3)(c) of the Statute, where the Security Council specifically chose the same wording as that of the corresponding provision of the Convention on Genocide.[5] Article 2(3)(c) reads:

The following acts shall be punishable:

[…]

(c) Direct and public incitement to commit genocide.[6]

480.    With respect specifically to incitement to commit the crime of genocide, the Statute makes clear that the act must be direct and public, which plainly excludes any other form of incitement to commit genocide, including private incitement to commit genocide. Such additional element is not included in the text of Article 6(1) of the Statute.  The Appeals Chamber is of the opinion that if such a requirement were to be included also in Article 6(1) of the Statute, then the specification contained in Article 2(3)(c) of the Statute would be superfluous.[7]

481.    In this connection, it would be erroneous to superimpose this wording on the (discrete) wording of Article 6(1) of the Statute, so as to import into the latter language to the effect that Article 2(3)(c) of the Statute provides explicitly that incitement to commit genocide must be public.  As stated above, this would run counter to the well-established rules of interpretation under, which, in general, disparities in meaning are seen as tantamount to disparities in language.

482.    Consequently, the Appeals Chamber finds that there is no cause to hold that the Security Council intended Article 6(1) of the Statute to include an additional element (absent from the explicit language of the provision), which would require an interpretation inconsistent with its plain and ordinary meaning.

483.    For the foregoing reasons, having considered this ground of appeal the Appeals Chamber finds that “incitement”, as set out in Article 6(1) of the Statute, need not be “direct and public”.

[1] Emphasis added.

[2] Article 31(1) of the Vienna Convention on the Law of Treaties.

[3] Prosecution’s Brief [Prosecutor’a Appellant Brief, 10 July 2000], para. 5.27.

[4] Article 31(4) of the Vienna Convention on the Law of Treaties.

[5] Article III of the Convention on the Prevention and Punishment of the Crime of Genocide:  The Following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

[6] Article 2(3)(c) of the Statute (emphasis added).  One may also cite Article 2(3)(f) of ILC Report which provides that “[a]n individual shall be responsible for a crime set out in articles 17, 18, 19 or 20 if that individual: […] (f) directly and publicly incites another individual to commit such a crime which in fact occurs” .(p.18)

[7] Tadic Appeal Judgment para. 284.

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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)

75. The Appeals Chamber notes that the Trial Chamber was unable to identify the direct perpetrators of the alleged murders or other crimes by name, but with respect to the crimes for which Tarčulovski was convicted the Trial Chamber did find that the direct perpetrators were members of the police who entered Ljuboten on the morning of 12 August 2001[1] and that Tarčulovski directed the actions of the police in the village that day.[2] These findings were sufficiently specific to identify the direct perpetrators as persons being directed by Tarčulovski for the purposes of establishing his criminal liability.[3] Tarčulovski’s arguments in this respect are rejected.

See also para. 89.

[1] Trial Judgement, paras 42, 58, 60-61, 66, 312-313, 316, 319, 325, 328, 380, 383, 385, 552, 555, 560 and 564.

[2] Trial Judgement, paras 555, 560, 564 and 574.

[3] See also for: 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; Karera Appeal Judgement, paras 317-318; Nahimana et al. Appeal Judgement, para. 480. See also, e.g., Gacumbitsi Appeal Judgement, 99 and 105-108, affirming the Trial Chamber’s finding that Gacumbitsi is responsible for instigating, referring to, in particular, Trial Judgement, paras 213, 215 and 328, where physical perpetrators are described as a “group of attackers on which the bourgmestre had influence”, and “young men who, being in the neighbourhood, heard the bourgmestre’s instigation”. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Karera Appeal Judgement, para. 211; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361. See also, e.g., Blaškić Appeal Judgement, paras 588 (fn. 1195) and 597, finding Blaškić responsible for ordering, and confirming the Trial Chamber’s findings, in particular paras 688, 693, 699 and 735, in which physical perpetrators are referred to as the “HVO” or “HVO soldiers” and the “Military Police”; Gacumbitsi Appeal Judgement, paras 184-187, finding Gacumbitsi responsible for ordering, and referring to, in particular, Trial Judgement, paras 98, 152, 154, 163, 168 and 171-173, where physical perpetrators are referred to as “conseillers”, the “communal police”, “gendarmes”, and the “Interahamwe”; Semanza Appeal Judgement, para. 363, finding Semanza responsible for ordering, and confirming the Trial Chamber’s findings, in particular in paras 178 and 196, where physical perpetrators are described as “soldiers”, “gendarmes”, and the “Interahamwe”. Cf. for superior responsibility: Orić Appeal Judgement, para. 35; Blagojević and Jokić Appeal Judgement, para. 287; Blaškić Appeal Judgement, para. 216, with reference to Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras 38 and 40. As regards joint criminal enterprise: Krajišnik Appeal Judgement, paras 156-157.

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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.

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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)

66. The Appeals Chamber recalls its holding that:

The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.[1]

It is well-established in the Tribunal’s jurisprudence that the elements of a Common Article 3 crime encompass the requirement that the victim did not take an active part in the hostilities at the time when the crime was committed.[2] Therefore, the Appeals Chamber is satisfied that the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.[3]

67. In the present case, the Trial Chamber did not make explicit findings on the mens rea of the direct perpetrators in relation to the status of the victims of the Common Article 3 crimes of murder and cruel treatment.[4] However, when read as a whole,[5] the Trial Judgement shows that the Trial Chamber examined whether the direct perpetrators knew or should have been aware of the status of the victims in relation to each crime, as demonstrated by its findings on the factual circumstances in which the crimes were committed.[6] […]

67. […] In these circumstances, where the direct perpetrators’ knowledge of the status of the victims was part of the Trial Chamber’s factual findings, the Appeals Chamber need not consider whether such findings are necessary for a conviction for planning, instigating and ordering. Tarčulovski’s argument in this regard is dismissed. Under the third and fourth grounds of appeal, the Appeals Chamber will consider further whether the totality of the Trial Chamber’s factual findings in relation to the status of the victims are reasonable.[1]

68. With respect to Tarčulovski’s mens rea, the Appeals Chamber recalls that he was convicted of planning, instigating and ordering crimes including those under Common Article 3. Hence, Tarčulovski was required to have the direct intent or the awareness of the substantial likelihood that the crimes would be committed in the execution of his plan, instigation and order.[2] Indeed the Trial Chamber found that Tarčulovski was responsible for planning, instigating and ordering the “deliberate but indiscriminate attack against the residents of Ljuboten of Albanian ethnicity”.[3] Given the indiscriminate nature of the attack, the Appeals Chamber is satisfied that the Trial Chamber reasonably concluded that Tarčulovski possessed the requisite mens rea for these modes of liability.[4] His argument in this regard is dismissed.

[1] See infra paras 86, 95, 102 and 119.

[2] See Kordić and Čerkez Appeal Judgement, paras 29-32, and infra paras 132 and 174.

[3] Trial Judgement, para. 573. See also ibid., para. 574; infra paras 135, 153-154, 157 and 161.

[4] Trial Judgement, para. 576. See also the Appeals Chamber’s findings relevant to this matter in infra paras 132, 135, 150 and 174. Cf. Milošević Appeal Judgement, para. 273.

[1] Naletilić and Martinović Appeal Judgement, para. 114; see also ibid., para. 118. 

[2] Strugar Appeal Judgement, para. 172; Čelebići Appeal Judgement, paras 420 and 423-424.

[3] See Naletilić and Martinović Appeal Judgement, paras 118-121, analysing, in light of the principle of individual guilt, the mens rea requirement in relation to the international or internal nature of an armed conflict and arriving at the same conclusion. Concerning the mens rea of the crime of attacks against civilians, the Appeals Chamber held that it must be proven that the perpetrator was aware or should have been aware of the civilian status of the persons attacked (Strugar Appeal Judgement, para. 271, citing Galić Trial Judgement, para. 55). See Haradinaj et al. Trial Judgement, para. 62; Milutinović et al. Trial Judgement, para. 134; Delić Trial Judgement, para. 44; Martić Trial Judgement, para. 47; Krajišnik Trial Judgement, para. 847; Halilović Trial Judgement, para. 36. Cf. Elements of Crimes, Article 8(2)(c)(i)-1 and 8(2)(c)(i)-3 of the ICC Statute.

[4] Trial Judgement [Prosecutor v. Ljube Boškoski and Johan Tačulovski, Case No. IT-04-82-T, Judgement, 10 July 2008], paras 301-303. The Appeals Chamber notes that the Trial Chamber made explicit findings on all the other aspects of the mens rea of the direct perpetrators in relation to crimes of murder, wanton destruction and cruel treatment (Trial Judgement, paras 312, 320, 328, 330-332, 380, 385 and 387-388). In the Tarčulovski Reply Brief, Tarčulovski appears to contest these findings, in particular due to the lack of specific identification of the direct perpetrators (Tarčulovski Reply Brief, paras 53 (murder), 75 (wanton destruction) and 78 (cruel treatment); see also Tarčulovski Appeal Brief, para. 166). The Appeals Chamber finds that the Trial Chamber reasonably made these findings in light of the evidence taken as a whole. As regards the identification of the direct perpetrators, see infra paras 73-75 and 89.

[5] See Orić Appeal Judgement, para. 38; Naletilić and Martinović Appeal Judgement, para. 435; Stakić Appeal Judgement, para. 344.

[6] See, e.g., Trial Judgement, paras 303, 310-312, 314-320, 323-328, 344-345, 383, 385 and 387-388. 

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ICTY Statute Article 3;
Article 3(b)
Other instruments Geneva Convention: common Article 3.
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. 

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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.

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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. 

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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.

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