Absence of conviction under Article 6(1)
|Appeal Judgement - 08.05.2012||
282. The Appeals Chamber considers that the fact that Ntabakuze was acquitted of all charges against him pursuant to Article 6(1) of the Statute and was solely convicted pursuant to Article 6(3) of the Statute is not subject to consideration as a mitigating factor. The form of liability is not an individual circumstance of the accused but the objective definition of his participation in the criminal conduct. Further, failure to prevent or punish subordinates’ crimes constitutes the culpable conduct under Article 6(3) of the Statute and the absence of conviction under Article 6(1) of the Statute does not reduce that culpability. The Appeals Chamber finds that the Trial Chamber was therefore correct in not considering in mitigation the fact that Ntabakuze was not convicted pursuant to Article 6(1) of the Statute and, accordingly, rejects Ntabakuze’s argument in this respect.
 Čelebići Appeal Judgement, para. 737. Cf. also Ntawukulilyayo Appeal Judgement, para. 236. Moreover, the Appeals Chamber notes that the Prosecution did not charge Ntabakuze pursuant to Article 6(1) of the Statute for the crimes for which he was ultimately convicted. See [The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Amended Indictment, 12 August 1999; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Cases Nos. ICTR-97-34-I & ICTR-97-30-I, Amended Indictment, 13 August 1999 (“Indictment”)], references to paragraphs 6.36 and 6.37 under the respective counts on pp. 45, 47-53; Trial Judgement, para. 2005.
|ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)|