Modes of liability

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

483. The Appeals Chamber concludes by recalling that the modes of responsibility under Article 6(1) of the Statute are not mutually exclusive and that it is possible to charge more than one mode in relation to a crime if this is necessary in order to reflect the totality of the accused’s conduct.[1]

[1] Ndindabahizi Appeal Judgement, para. 122; Kamuhanda Appeal Judgement, para. 77. 

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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

259. The Appeals Chamber notes that it has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.[1] Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment. […]

[1] Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, n. 319. 

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

194. […] [I]n the Appeals Chamber’s view, a distinction must be drawn between general and specific pleadings. Although some or all modes of liability may be generally pleaded in a chapeau paragraph, it does not necessarily follow that all generally pleaded modes of liability apply to every particularized event in an indictment, especially where each event specifies a limited number of applicable modes of liability. The Appeals Chamber therefore does not agree with the Trial Chamber’s conclusion that, because “‘[o]rdering’ was only pleaded generally in the preamble (paragraph 5) and not in the following paragraphs alleging the particulars […] [i]t was therefore clear that this form of liability was intended to apply to all those paragraphs.”[1]

See also paras 192, 193.

[1] Trial Judgement, para. 411. See also ibid., fn. 579, where the Trial Chamber explained that “the Prosecution expressly indicated the appropriate mode of liability, either by pleading it generally with no subsequent reference in the paragraphs pleading the particular acts (‘ordering’), or pleading generally and then specifying the particular facts to which the mode applied (‘instigating’, ‘committing’ and ‘aiding and abetting’).” In the Appeals Chamber’s view, the Prosecution’s inconsistent way of pleading “ordering”, as opposed to “instigating”, “committing” and “aiding and abetting”, renders the application of the general pleading more ambiguous. See also infra, para. 197. 

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

30. The Appeals Chamber recalls that the practice of both the Tribunal and the ICTY requires the Prosecution to plead the specific forms of individual criminal responsibility for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein, because of the ambiguity that this causes.[2]

[1] Semanza Appeal Judgement, para. 357; Blagoje Simić Appeal Judgement, para. 21; Blaškić Appeal Judgement, para. 215. See also Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, para. 171, n. 319; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the form of the Amended Indictment, 20 February 2001 (“Brđanin and Talić Decision of 20 February 2001”), para. 10; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (“Krnojelac Decision of 11 February 2000”), para. 60.

[2] See, e.g., Semanza Appeal Judgement, para. 357; Ntakirutimana Appeal Judgement, para. 473; Krnojelac Decision of 11 February 2000, para. 60; Aleksovski Appeal Judgement, para. 171, n. 319; Delalić et al. Appeal Judgement, para. 351; Brđanin and Talić Decision of 20 February 2001, para. 10.

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Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

138.    […] With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment - for instance in a pre-trial brief - the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial. 

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 122, the Appeals Chamber recalled its previous finding that, even when the Prosecution quotes in full the provisions of Article 6(1) of the Statute in the Indictment, the Indictment can be sufficiently pleaded in other paragraphs of the indictment.[1]

The Appeals Chamber considered “the reference to aiding and abetting in the preamble to Count 4 [by repeating the language of Article 6(1)], taken in combination with the allegations of material facts sufficient to support a conviction under that mode of liability, was sufficient to put the Appellant on notice that he was charged with aiding and abetting”.[2]

[1] “[I]t has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged. Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment.” (Semanza Appeal Judgement, para. 259, referring to Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, fn. 319).

[2] Appeal Judgement, para. 123. Judges Güney and Meron both issued a Partially Dissenting Opinion.

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Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

48. Nevertheless, the Appeals Chamber agrees with Uwinkindi that the assertion in paragraph 15 of the Amended Indictment that he was “often present and/or aware” of crimes committed by Interahamwe does not sufficiently indicate on which form of responsibility the Prosecution intends to rely.[1] The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and the Prosecution should therefore indicate precisely which form of liability is invoked based on the facts alleged.[2]

57. The second chapeau paragraph under Counts 1 and 2 of the Amended Indictment implicates Uwinkindi in planning, instigating, ordering, committing, or otherwise aiding and abetting in the preparation or execution of genocide and extermination as a crime against humanity. This enumeration mirrors Article 6(1) of the Statute. The Appeals Chamber recalls that, in order to ensure that an accused is unambiguously informed about the nature of the charges against him, the Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein and specifically pleads the material facts relevant to each form.[3] Otherwise, the indictment will be defective.[4] Furthermore, as stated above, 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.[5] The Amended Indictment does not fulfil these requirements with respect to every form of individual criminal responsibility listed in the second chapeau paragraph under Counts 1 and 2. It is therefore defective in this respect.

[1] In addition to participating in a JCE, Uwinkindi is charged with all the forms of individual criminal responsibility provided under Article 6(1) of the Statute. See Amended Indictment [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Prosecutor’s Response to the Defence Preliminary Motion Alleging Defects in the Form of the Indictment, 4 January 2011], second chapeau paragraphs under Counts 1 and 2.

[2] See Blaškić Appeal Judgement, para. 215.

[3] Rukundo Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, para. 473; Simić Appeal Judgement, para. 21; Blaškić Appeal Judgement, para. 215.

[4] Simić Appeal Judgement, para. 21.

[5] See supra, para. 36.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

185.    Article 6(1) of the Statute provides that a person who “planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.” This provision reflects the criminal law principle that criminal liability is not incurred solely by individuals who physically commit a crime, but may also extend to those who participate in and contribute to a crime in various ways, when such participation is sufficiently connected to the crime, following principles of accomplice liability. Article 6 (1) may thus be regarded as intending to ensure that all those who either engage directly in the perpetration of a crime under the Statute, or otherwise contribute to its perpetration, are held accountable.[1]

186.    The Appeals Chamber notes that the Trial Chamber did, earlier in the Judgement, discuss the general principles relating to criminal responsibility under Article 6 (1) of the Statute. The relevant paragraph of the Trial Judgement reads:

The Trial Chamber is of the opinion that, as was submitted by the Prosecution, there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6 (1). This test required the demonstration of (i) participation, that is that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime.[2]

          The Appeals Chamber finds that this statement corresponds to the elements of individual criminal responsibility as set out, as follows, by the jurisprudence[3] of this Tribunal and that of ICTY:

    1. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have a direct and substantial effect on the commission of the illegal act; and
    2. The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.

[…]

[…]

189.    […] individual responsibility under Article 6 (1) of the Statute attaches not only to direct physical participation by the accused in the commission of the crime, but also to acts of participation which in fact contribute to, or have an effect on, the commission of the crime. […]

[1] See Tadić Appeal Judgement, para. 190 in relation to an identical provision in Article 7(1) of ICTY Statute; see also Kordić Trial Judgement, para. 373.

[2] Trial Judgement, para. 198, This test was drawn from the Tadić Trial Judgement applying identical provisions in Article 7 (1) of ICTY Statute.

[3] Tadić Trial Judgement, paras. 674 and 689; Čelebići Trial Judgement, para. 326; Akayesu Trial Judgement, para. 477.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

198.    In line with the relevant international case law, referred to in the foregoing analysis, a person may be held criminally liable for any conduct, where it is determined that he participated knowingly in the commission of a crime, if his participation directly and substantially contributed to the perpetration of the crime.[1] The intent to participate in the commission of a crime may thus be inferred from the accused’s participation, particularly from his aiding and abetting. Ultimately, and as acknowledged by the Trial Chamber, there must on the part of the Accused be a clear awareness that this participation will lead to the commission of a crime.”[2] That intention may be inferred from a number of facts,[3] the assessment of which falls to the Trial Chamber. […]

[1] Tadić Trial Judgement, 1997, para. 674. The requirement of intent under Article 6 (1) thus includes knowledge of the act of participation and a conscious decision to participate by planning, instigating, ordering, committing or otherwise aiding and abetting in the preparation of a crime.

[2] Trial Judgement, para. 203.

[3] Akayesu Trial Judgement, para. 478.

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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)

139.    In relation to Stanišić’s submission that the Trial Chamber failed to provide a reasoned opinion as to whether and how his acts and conduct furthered the JCE, and whether his alleged contribution to the JCE was significant, the Appeals Chamber notes that the Trial Chamber indeed did not enter express findings in this regard. The Appeals Chamber recalls that these are legal requirements in order for joint criminal enterprise liability to be incurred[1] and that not every type of conduct will amount to a significant enough contribution to the crime to give rise to criminal liability.[2] A trial chamber’s determination of whether and to what extent an accused’s acts and conduct furthered the joint criminal enterprise, and whether the requisite threshold of significance is met, are therefore relevant legal findings essential to the determination of an accused’s guilt, and must be set out in a clear and articulate manner.[3] The lack of explicit findings in this regard falls short of what is required under Article 23(2) of the Statute and Rule 98ter(C) of the Rules.[4] Neither Stanišić nor the Appeals Chamber should be expected to engage in a speculative exercise to discern the Trial Chamber’s findings in this regard.[5]

140.    In this context, the Appeals Chamber further considers that the absence of these essential legal findings and the accompanying reasoning have necessarily hindered Stanišić’s ability to appeal his conviction, as he would have been unable to identify exactly which underlying factual findings the Trial Chamber relied upon in its ultimate conclusion that he contributed significantly to the furtherance of the JCE. The Appeals Chamber therefore finds that the Trial Chamber’s failure to enter express findings as to whether and how Stanišić’s acts and conduct furthered the JCE, and whether his contribution was significant constitutes a failure to provide a reasoned opinion.

[1] Popović et al. Appeal Judgement, para. 1378; Krajišnik Appeal Judgement, paras 215, 218, 695; Brđanin Appeal Judgement, paras 427, 430. See supra [Stanišić and Župljanin Appeal Judgement]], para. 136.

[2] Šainović et al. Appeal Judgement, para. 988; Brđanin Appeal Judgement, para. 427.

[3] Stanišić and Simatović Appeal Judgement, para. 78; Popović et al. Appeal Judgement, para. 1906; Bizimungu Appeal Judgement, paras 18-19.

[4] See Kordić and Čerkez Appeal Judgement, paras 384-385; Bizimungu Appeal Judgement, paras 18-19.

[5] Cf. Orić Appeal Judgement, para. 56. The Trial Judgement must enable the Appeals Chamber to discharge its task pursuant to Article 25 of the Statute based on a sufficient determination as to what evidence has been accepted as proof of all elements of the mode of liability charged (Cf. Kordić and Čerkez Appeal Judgement, para. 385). The Appeals Chamber notes that, by contrast, after analysing Župljanin’s conduct, the Trial Chamber concluded that “during the Indictment period, Stojan Župljanin significantly contributed to the common objective to permanently remove Bosnian Muslims and Bosnian Croats from the territory of the planned Serbian state” (Trial Judgement, vol. 2, para. 518. See Trial Judgement, vol. 2, para. 510 (holding that Župljanin’s “omission to take adequate measures to stop the mass arrest of non-Serbs and his policemen’s involvement therein constituted at least a significant contribution to the unlawful arrests, if not a substantial one”)). The Appeals Chamber considers that the different approach taken with respect to Župljanin further highlights the Trial Chamber’s failure to enter the requisite findings with respect to Stanišić (see Bizimungu Appeal Judgement, para. 19 and fn. 52 (wherein the Appeals Chamber noted that “[b]]y contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions”, specifying that the trial chamber made “legal findings on the crime of genocide in relation to Ndindiliyamana”)).

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ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter