Omission

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1741. Finally, it is recalled that whether an act or omission had a substantial effect on the commission of a crime is a fact-based inquiry,[1] and further, this aspect of aiding and abetting by omission has been interpreted to mean that had the accused acted the commission of the crime would have been substantially less likely.[2]

[1]           Mrkšić and Šljivančanin Appeal Judgement, para. 200.

[2]           See Šainović et al. Appeal Judgement, paras 1679, 1682, fn. 5510; Mrkšić and Šljivančanin Appeal Judgement, paras 97, 100.

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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

134. The Appeals Chamber recalls that while individual criminal responsibility generally requires the commission of a positive act, this is not an absolute requirement.[1] In particular, the Appeals Chamber has previously found that “the omission to act where there is a legal duty to act can lead to individual criminal responsibility under Article 7(1) of the Statute”.[2] Moreover, the Appeals Chamber has consistently found that, in the circumstances of a given case, the actus reus of aiding and abetting may be perpetrated through an omission.[3]

135. Accordingly, the Appeals Chamber finds that the Trial Chamber properly considered aiding and abetting by omission as a recognised mode of liability under the International Tribunal’s jurisdiction.[4]

[1] Blaškić Appeal Judgement, para. 663.

[2] Orić Appeal Judgement, para. 43. See also Brđanin Appeal Judgement, para. 274; Galić Appeal Judgement, para. 175; Simić Appeal Judgement, fn. 259; Blaškić Appeal Judgement, paras 47-48, 663, fn. 1385; Tadić Appeal Judgement, para.  188; Ntagerura et al. Appeal Judgement, paras 334, 370.

[3] Blaskić Appeal Judgement, para. 47. See also Nahimana et al. Appeal Judgement, para. 482; Ntagerura et al. Appeal Judgement, para. 370.

[4] Trial Judgement, paras 553, 662.

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(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.

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49. At the outset, the Appeals Chamber recalls that to enter a conviction for aiding and abetting murder by omission, at a minimum, all the basic elements of aiding and abetting must be fulfilled.[1] In this regard, the Appeals Chamber in Orić recalled that “omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act”.[2] The actus reus of aiding and abetting by omission will thus be fulfilled when it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime and had a substantial effect on the realisation of that crime.[3] The Appeals Chamber recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act, such that there were means available to the accused to fulfil his duty.[4] Meanwhile, the required mens rea for aiding and abetting by omission is that “[t]he aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal”.[5] As the Appeals Chamber held in the  Simić case,

it is not necessary that the aider and abettor knows either the precise crime that was intended or the one that was, in the event, 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 abetter.[6]

[…].

146. As Šljivančanin argues,[7] the Appeals Chamber has never set out the elements for a conviction for omission in detail.[8] In the Orić case, the Appeals Chamber considered the Trial Chamber’s findings in order to determine whether Atif Krdžić, Naser Orić’s subordinate, had been found responsible for aiding and abetting by omission.[9] It concluded that no such finding had been entered as the issue of whether Naser Orić’s subordinate had incurred criminal responsibility had not been resolved by the Trial Chamber.[10] In this context, with regard to the mode of liability of aiding and abetting by omission, the Appeals Chamber held that:

at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus). The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).[11]

Accordingly, the Appeals Chamber in Orić acknowledged that the basic elements of aiding and abetting apply notwithstanding whether this form of liability is charged as “omission”. The mens rea and actus reus requirements for aiding and abetting by omission are the same as for aiding and abetting by a positive act.[12] The critical issue to be determined is whether, on the particular facts of a given case, it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime, and had a substantial effect on it. In particular, the question as to whether an omission constitutes “substantial assistance” to the perpetration of a crime requires a fact based enquiry.[13]

[1] Orić Appeal Judgement, para. 43.

[2] Orić Appeal Judgement, para. 43, citing Brđanin Appeal Judgement, para. 274; Galić Appeal Judgement, para. 175; Ntagerura et al. Appeal Judgement, paras 334, 370; Blaškić Appeal Judgement, para. 663.

[3] Orić Appeal Judgement, para. 43, citing Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, para. 85.

[4] Cf. Ntagerura et al. Appeal Judgement, para. 335.

[5] Orić Appeal Judgement, para. 43 (footnotes omitted).

[6] Simić Appeal Judgement, para. 86, citing Blaškić Appeal Judgement, para. 50. See also Ndindabahizi Appeal Judgement, para. 122.

[7] Šljivančanin Appeal Brief, para. 192.

[8] Orić Appeal Judgement, para. 43, citing Simić Appeal Judgement, para. 85, fn. 259; Blaškić Appeal Judgement, para. 47. The Appeals Chamber notes that paragraph 554 of the Trial Judgement in the case at hand states that, in the Blaškić Appeal Judgement, the Appeals Chamber found that although not expressly stated, Tihomir Blaškić was apparently convicted for having aided and abetted by omission the inhuman treatment of detainees occasioned by their use as human shields. The Trial Chamber in the present case reached this conclusion by reasoning that given that the indictment against Tihomir Blaškić charged him with all the forms of responsibility under Article 7(1) of the Statute, and that all of these, save for aiding and abetting, were specifically rejected or clearly not considered, the Appeals Chamber must have entered a conviction for aiding and abetting as it was the only remaining mode of liability. This understanding of the Blaškić Appeal Judgement is incorrect. The Appeals Chamber would like to emphasize for the sake of clarity that the Blaškić Appeals Chamber did not convict Tihomir Blaškić for aiding and abetting by omission the inhuman treatment of detainees. The Blaškić Appeals Chamber affirmed Tihomir Blaškić’s conviction under Count 19 of the indictment pursuant to Article 7(1) of the Statute for the inhuman treatment of detainees occasioned by their use as human shields (a grave breach as recognised by Article 2(b) of the Statute). In reaching this decision the Blaškić Appeals Chamber: recalled that the indictment against him pleaded that by his acts and omissions, he had committed a grave breach as recognized by Articles 2(b), 7(1) and 7(3) (inhuman treatment) of the Statute of the International Tribunal; set out the legal definition of inhuman treatment under Article 2 of the Statute; found that the Trial Chamber’s finding that he knew of the use of the detainees as human shields was one that a reasonable trier of fact could have made; and found that his failure to prevent the continued use of the detainees as human shields, leaving the protected persons exposed to danger of which he was aware, constituted an intentional omission on his part. The Blaškić Appeals Chamber found that the elements constituting the crime of inhuman treatment had been met as there was an omission to care for protected persons which was deliberate and not accidental, which caused serious mental harm, and constituted a serious attack on human dignity. In the absence of proof that Tihomir Blaskić positively ordered the use of human shields, the Appeals Chamber concluded that his criminal responsibility was properly expressed as an omission pursuant to Article 7(1) as charged in the indictment and found him guilty under Article 7(1) of the Statute for the inhuman treatment of detainees occasioned by their use as human shields. Indeed, as the Trial Chamber in the present case noted, the Blaškić Appeals Chamber left open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting. This statement has to be read in context with the facts of that case. In his appeal, Tihomir Blaškić had argued that the Trial Chamber erroneously applied a strict liability standard to find him guilty as an aider and abettor. After concluding that the Trial Chamber had correctly set out the mens rea and actus reus requirements, the Blaškić Appeals Chamber found that the Trial Chamber was correct in part and erred in part in setting out the legal requirements of aiding and abetting. It was in the context of analyzing the Trial Chamber’s articulation of the actus reus of aiding and abetting (which the Trial Chamber considered might 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) that the Blaškić Appeals Chamber stated that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting. Furthermore, the Blaškić Appeals Chamber noted that the Trial Chamber did not hold Tihomir Blaškić responsible for aiding and abetting the crimes at issue; considered that this form of participation had been insufficiently litigated on appeal; concluded that this form of participation was not fairly encompassed by the indictment; and declined to consider this form of participation any further. See Blaškić Appeal Judgement, paras 43-52, 660, 665, 666, 668, 670, Disposition, p. 258.

[9] See Orić Appeal Judgement, paras 43-46.

[10] See Orić Appeal Judgement, para. 47.

[11] Orić Appeal Judgement, para. 43, citing Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, paras 85, 86; Seromba Appeal Judgement, para. 56; Blagojević and Jokić Appeal Judgement, para. 127; Aleksovski Appeal Judgement, para. 162.

[12] Orić Appeal Judgement, para. 43; Blaškić Appeal Judgement, para. 47 (“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”).

[13] See Blagojević and Jokić Appeal Judgement, para. 134 (“The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry”). See also Muvunyi Appeal Judgement, para. 80.

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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

82. The Appeals Chamber further recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act but failed to do so.[1] In order to determine whether [ljivančanin had the ability to act but failed to do so, the Appeals Chamber must be satisfied beyond reasonable doubt that the Prosecution has provided sufficient evidence concerning which means were available to [ljivančanin to fulfil his continuing duty towards the prisoners of war.[2] […]

154. The Appeals Chamber considers that aiding and abetting by omission necessarily requires that the accused had the ability to act, or in other words, that there were means available to the accused to fulfil this duty.[3] […]

[1] Cf. Ntagerura et al. Appeal Judgement, para. 335. See also infra para. 154.

[2] Cf. Ntagerura et al. Appeal Judgement, para. 335. (Where the Appeals Chamber also held that the Prosecution had not indicated which possibilities were open to Bagambiki to fulfil his duties under the Rwandan domestic law).

[3] Cf. Ntagerura et al. Appeal Judgement, para. 335.

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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

93. [T]he Appeals Chamber considers that even though Šljivančanin no longer had de jure authority over the military police deployed at Ovčara, had he ordered the military police not to withdraw, these troops may well have, in effect, obeyed his order to remain there, considering he had been originally vested with the authority for the entire evacuation of the Vukovar Hospital and entrusted with responsibility for protecting the prisoners of war. In particular, Šljivančanin could have informed the military police deployed at Ovčara that Mrkšić’s order was in breach of the overriding obligation under the laws and customs of war to protect the prisoners of war, and thus constituted an illegal order.

94. Indeed, issuing an order contrary to Mrkšić’s to the military police of the 80 mtbr was a course of action that would have required Šljivančanin to go beyond the scope of his de jure authority, which had been effectively removed by virtue of Mrkšić withdrawal order.[1] Nonetheless, the illegality of Mrkšić’s order required [ljivančanin to do so. To further support this conclusion, the Appeals Chamber recalls the analysis in the Čelebići Trial Judgement which implies that in the context of preventing the commission of a war crime, an officer may be expected to act beyond the strict confines of his de jure authority:

Likewise, the finding in the High Command case that a commander may be held criminally liable for failing to prevent the execution of an illegal order issued by his superiors, which has been passed down to his subordinates independent of him, indicates that legal authority to direct the actions of subordinates is not seen as an absolute requirement for the imposition of command responsibility. Similarly, the finding in the Toyoda case, whereby the tribunal rejected the alleged importance of what it called the "theoretical" division between operational and administrative authority, may be seen as supporting the view that commanders are under an obligation to take action to prevent the commission of war crimes by troops under their control despite a lack of formal authority to do so. An officer with only operational and not administrative authority does not have formal authority to take administrative action to uphold discipline, yet in the view of the tribunal in the Toyoda case; "[t]he responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own.”[2]

Although the Trial Chamber in Čelebići discussed this in the context of superior responsibility, the Appeals Chamber considers that the principle that an officer may be required, within the limits of his capacity to act, to go beyond his de jure authority to counteract an illegal order is equally applicable to the present case.

See also footnote 331:

It is a principle of international humanitarian law that subordinates are bound not to obey manifestly illegal orders or orders that they knew were illegal. See Hostage Case (United States v. Wilhelm List et al., Trials of War Criminals, Vol. XI, p. 1236): “[T]he general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice”. See also Erdemović 1996 Sentencing Judgement, para. 18 (“Although the accused did not challenge the manifestly illegal order he was allegedly given, the Trial Chamber would point out that according to the case-law referred to, in such an instance, the duty was to disobey rather than to obey.”), fn. 12 (“Trial of Rear-Admiral Nisuke Masuda and four others of the Imperial Japanese Navy, Jaluit Atoll Case, U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island, Kwajalein Atoll, Marshall Islands, 7-13 December 1945, Case No. 6, L.R.T.W.C., Vol. I, pp. 74-76, pp. 79-80. See also Trial of Wilhelm List and Others, U.S. Military Tribunal, Nuremberg, 8 July 1947-19 February 1948, L.R.T.W.C., Case No. 47, Vol. VIII, pp. 50-52 […].); Mrđa Sentencing Judgement, para. 67 (“As to the related issue of superior orders, Article 7(4) of the Statute states that ‛[t]he fact that an accused person acted pursuant to an order of a government or of a superior […] may be considered in mitigation of punishment if the Tribunal determines that justice so requires.’ […] [T]he orders were so manifestly unlawful that Darko Mrđa must have been well aware that they violated the most elementary laws of war and the basic dictates of humanity. The fact that he obeyed such orders, as opposed to acting on his own initiative, does not merit mitigation of punishment.”).

[1] See supra paras 90-92.

[2] Čelebići Trial Judgement, para. 373 (footnotes omitted). See also Čelebići Appeal Judgement, para. 195.

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159. The Appeals Chamber considers that Šljivančanin misapprehends the mens rea standard applicable to aiding and abetting. The fact that an “omission must be directed to assist, encourage or lend moral support to the perpetration of a crime” forms part of the actus reus not the mens rea of aiding and abetting.[1] In addition, the Appeals Chamber has confirmed that “specific direction” is not an essential ingredient of the actus reus of aiding and abetting.[2] It reiterates its finding that the required mens rea for aiding and abetting by omission is that: (1) the aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator; and (2) he must be aware of the essential elements of the crime which was ultimately committed by the principal.[3] While it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed, if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter.[4] The Appeals Chamber further recalls that it has previously rejected an elevated mens rea requirement for aiding and abetting, namely, the proposition that 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.[5] Accordingly, Šljivančanin’s arguments are dismissed.  

[1] Orić Appeal Judgement, para. 43.

[2] Blagojević and Jokić Appeal Judgement, para. 189; see also Blagojević and Jokić Appeal Judgement para. 188.

[3] See supra para. 146.

[4] Simić Appeal Judgement, para. 86, citing Blaškić Appeal Judgement, para. 50. See also Nahimana et al. Appeal Judgement, para. 482; Ndindabahizi Appeal Judgement, para. 122; Furundžija Trial Judgement, para. 246.

[5] Blaškić Appeal Judgement, para. 49, citing Vasiljević Appeal Judgement, para. 102. See also Blagojević and Jokić Appeal Judgement, para. 222. 

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151. The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility.[1] The Appeals Chamber further recalls that Šljivančanin’s duty to protect the prisoners of war was imposed by the laws and customs of war.[2] Thus, the Appeals Chamber considers that Šljivančanin’s breach of such duty gives rise to his individual criminal responsibility. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.

[1] Blaškić Appeal Judgement, para. 663, fn. 1384.

[2] See supra Section III.(B)( 3).

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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

155. Relying on the Appeals Chamber Judgements in Orić and Blaškić, Šljivančanin submits that, at a minimum, aiding and abetting by omission requires an elevated degree of “concrete influence”.[1] He argues that this provides an objective standard for establishing whether his omission had a “substantial effect” on the mistreatment of prisoners[2] and that the contribution must be considered from the perspective of the perpetrators of the crime, not the omission itself.[3] Šljivančanin also appears to propose that the failure to act must have a “decisive effect” on the commission of the crime,[4] but fails to elaborate this point. The Prosecution responds that there is no indication that the “concrete influence” standard is in fact any higher than “substantial effect” which is the correct standard,[5] and that Šljivančanin’s reliance on the Orić case is misplaced, since in that case the Appeals Chamber used the term “concrete influence” in the context of its finding that aiding and abetting by omission requires more than a simple correlation between the omission and the crimes.[6] The Prosecution submits that to prove that an omission had a substantial effect on the crime, it must be shown that the crime would have been substantially less likely to have occurred had the accused acted.[7]

156. The Appeals Chamber recalls that, in the Orić case, it found that the actus reus for “commission by omission requires an elevated degree of ‘concrete influence’”,[8] as distinct from the actus reus for aiding and abetting by omission, the latter requiring that the omission had a “substantial effect” upon the perpetration of the crime.[9] The Appeals Chamber finds no merit in Šljivančanin’s attempt to conflate the substantial contribution requirement with the notion of an elevated degree of influence,[10] and notes that Šljivančanin himself does not provide any further support for his submission on this issue, beyond the vague statement that an “objective criteria” for assessing “substantial contribution” is warranted on the particular facts of his case.[11] Accordingly, Šljivančanin’s argument is dismissed.

[1] Šljivančanin Appeal Brief, para. 245, citing Orić Appeal Judgement, para. 41, Blaškić Appeal Judgement, para. 664. See also Šljivančanin Supplemental Brief in Reply, paras 46-50; AT. 145-146.

[2] Šljivančanin Supplemental Brief in Reply, paras 46-47.

[3] AT. 147.

[4] Šljivančanin Appeal Brief, para. 247(d).

[5] Prosecution Supplemental Respondent’s Brief, para. 29.

[6] Ibid.

[7] AT. 169.

[8] Orić Appeal Judgement, para. 41, citing Blaškić Appeal Judgement, para. 664.

[9] Orić Appeal Judgement, para. 43, citing Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, para. 85.

[10] The Appeals Chamber emphasizes that the reference to the term “concrete influence” in the Orić case (Orić Appeal Judgement, para. 41) must be read in the context  of the Blaškić Appeals Chamber’s qualification to the effect that the degree of “concrete influence” of a superior over the crime in which his subordinates participate (namely, the time when the superior’s omission takes place vis-à-vis the occurrence of the crime), is a possible “distinguishing factor between the modes of responsibility expressed in Articles 7(1) and 7(3) of the Statute” since if the superior’s omission to prevent a crime occurs when “the crime has already become more concrete or currently occurs, his responsibility would also fall under Article 7(1) of the Statute” (Blaškić Appeal Judgement, para. 664).

[11] Šljivančanin Supplemental Brief in Reply, paras 47, 48.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1677. The Appeals Chamber recalls that a person may be held criminally responsible for aiding and abetting by omission where he or she fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime.[1] Additionally, aiding and abetting by omission necessarily requires that the accused has “the ability to act, or in other words, that there were means available to the accused to fulfil this duty”.[2]

1678. The Appeals Chamber considers that while Lazarević’s failure to take investigative and punitive measures against the commission of forcible displacement may have had an effect on the ability of the military prosecutor to pursue perpetrators of such crimes, this in itself is not conclusive for the purposes of establishing aiding and abetting liability. Rather as recalled above, in order to fulfil the actus reus of aiding and abetting, it must be demonstrated that any such omission substantially contributed to the continued commission of forcible displacement.[3] […]

[1] Mrkšić and [ljivančanin Appeal Judgement, paras 134, 146, 200.

[2] Mrkšić and [ljivančanin Appeal Judgement, para. 154. See also Ntagerura et al. Appeal Judgement, para. 335.

[3] In this regard, the Appeals Chamber recalls that to incur liability for aiding and abetting by omission, it must be established that: (i) the omission had a substantial effect on the crime in the sense that the crime would have been substantially less likely had the accused acted; and (ii) the accused knew that the commission of the crime was probable and that his inaction assisted it (Mrkšić and [ljivančanin Appeal Judgement, paras 97, 101; Orić Appeal Judgement, para. 43).

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Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

With regard to aiding and abetting by omission proper, the Appeals Chamber declined to discuss this mode of responsibility in detail, but recalled:

274.    […] The Appeals Chamber has recently affirmed that omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act.[1] However, it has never set out the requirements for a conviction for omission in detail,[2] and it has so far declined to analyse whether omission proper may lead to individual criminal responsibility for aiding and abetting.[3]

[1] Galić Appeal Judgement, para. 175, referring to Blaškić Appeal Judgement, para. 663 and Ntagerura et al. Appeal Judgement, para. 334. See also Tadić Appeal Judgement, para. 188: “This provision [Article 7(1) of the Statute] covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”

[2] The most comprehensive statement of these requirements can be found in the Ntagerura et al. Trial Judgement, para. 659, cited by Ntagerura et al. Appeal Judgement, para. 333: “[I]n order to hold an accused criminally responsible for an omission as a principal perpetrator, the following elements must be established: (a) the accused must have had a duty to act mandated by a rule of criminal law; (b) the accused must have had the ability to act; (c) the accused failed to act intending the criminally sanctioned consequences or with awareness and consent that the consequences would occur; and (d) the failure to act resulted in the commission of the crime.”

[3] “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”, Blaškić Appeal Judgement, para. 47; see also Simić Appeal Judgement, para. 85, fn. 259. In the Simić Appeal Judgement (para. 133), the Appeals Chamber upheld Simić’s conviction for aiding and abetting persecutions (confinement under inhumane conditions) inter alia for the “deliberate denial of adequate medical care to the detainees”. But this was understood as “active participation in the crime of persecutions”, Simić Appeal Judgement, para. 82, fn. 254.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

43. The Prosecution submits that the Trial Chamber found Atif Krdžić responsible for aiding and abetting by omission.[1] The Appeals Chamber recalls that omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act.[2] The Appeals Chamber has never set out the requirements for a conviction for omission in detail.[3] However, at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus).[4] The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator[5] and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).[6]

[1] Prosecution Response Brief, para. 126, 151; Prosecution Written Submissions of 25 March 2008, paras. 1-4; AT. 1 April 2008, pp. 9-11. Orić disputes the existence of a notion of aiding and abetting by “pure omission” in international humanitarian law and that a superior can be held responsible for subordinates who aid and abet by omission: AT. 1 April, pp. 60-62, 131-136.

[2] Brđanin Appeal Judgement, para. 274; Galić Appeal Judgement, para. 175; Ntagerura et al. Appeal Judgement, paras. 334, 370; Blaškić Appeal Judgement, para. 663.

[3] Cf. Simić Appeal Judgement, para. 85, fn. 259; Blaškić Appeal Judgement, para. 47.

[4] See, e.g., Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, para. 85.  

[5] See for the general definition of aiding and abetting, e.g., Seromba Appeal Judgement, para. 56; Nahimana et al. Appeal Judgement, para. 482; Blagojević and Jokić Appeal Judgement, para. 127.

[6] Cf. Simić Appeal Judgement, para. 86; Aleksovski Appeal Judgement, para. 162. 

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

43. The Prosecution submits that the Trial Chamber found Atif Krdžić responsible for aiding and abetting by omission.[1] The Appeals Chamber recalls that omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act.[2] The Appeals Chamber has never set out the requirements for a conviction for omission in detail.[3] However, at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus).[4] The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator[5] and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).[6]

[1] Prosecution Response Brief, para. 126, 151; Prosecution Written Submissions of 25 March 2008, paras. 1-4; AT. 1 April 2008, pp. 9-11. Orić disputes the existence of a notion of aiding and abetting by “pure omission” in international humanitarian law and that a superior can be held responsible for subordinates who aid and abet by omission: AT. 1 April, pp. 60-62, 131-136.

[2] Brđanin Appeal Judgement, para. 274; Galić Appeal Judgement, para. 175; Ntagerura et al. Appeal Judgement, paras. 334, 370; Blaškić Appeal Judgement, para. 663.

[3] Cf. Simić Appeal Judgement, para. 85, fn. 259; Blaškić Appeal Judgement, para. 47.

[4] See, e.g., Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, para. 85.  

[5] See for the general definition of aiding and abetting, e.g., Seromba Appeal Judgement, para. 56; Nahimana et al. Appeal Judgement, para. 482; Blagojević and Jokić Appeal Judgement, para. 127.

[6] Cf. Simić Appeal Judgement, para. 86; Aleksovski Appeal Judgement, para. 162. 

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Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

41. The Appeals Chamber considers that the Trial Chamber did not hold Atif Krdžić criminally responsible for commission by omission. At a minimum, the actus reus of commission by omission requires an elevated degree of “concrete influence”.[1] Such was not the case here, where the Trial Chamber merely found that Atif Krdžić’s absence from the detention facilities “coincide[d] with more killings and more maltreatment”.[2] Furthermore, the Trial Chamber clearly distinguished Atif Krdžić from the principal perpetrators who physically committed the crimes.[3]

[1] See Blaškić Appeal Judgement, para. 664.

[2] Trial Judgement, para. 496.

[3] See supra, paras. 24, 25, 27-30.

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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber held the following:

412. While the mode of liability of ordering necessarily entails that the person giving the order has a position of authority,[1] the level of authority may still play a role in sentencing as it is not an element of the mode of liability of “ordering” that an accused is high in the chain of command and thus wields a high level of authority.[2] […]

[1] Kordić and Čerkez Appeal Judgement, para. 28.

[2] The Appeals Chamber has previously considered that the level of authority may affect the sentence. See Tadić Sentencing Appeal Judgement, para. 56.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

109. The Appeals Chamber considers that Stanišić’s argument that the Trial Chamber failed to apply the correct legal standard to his “purported omissions”[1] is based on the premise that each failure to act assessed in the context of joint criminal enterprise liability must, per se, meet the legal conditions set out in the Tribunal’s case law in relation to commission by omission. In this respect, the Appeals Chamber recalls that although participation in a joint criminal enterprise – which is based on an accused’s significant contribution to the common criminal purpose – is a form of “commission” under Article 7(1) of the Statute, this is a mode of liability distinct from commission by omission and is characterised by different objective and subjective elements.[2]

110. In this respect, the Trial Chamber properly held that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[3] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case‑by‑case basis.[5] Furthermore, the Appeals Chamber recalls that the relevant failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[6] That is, one’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs acts (or fails to perform acts) that in some way contribute significantly to the furtherance of the common purpose.[7] In light of the above, contrary to Stanišić’s assertion, when establishing an accused’s participation in a joint criminal enterprise through his failure to act, the existence of a legal duty to act deriving from a rule of criminal law is not required.[8] The nature of the accused’s duty and the extent of his ability to act are simply questions of evidence and not determinative of joint criminal enterprise liability.[9]

111. In the present case, as part of its factual determination of Stanišić’s contribution to the JCE, the Trial Chamber considered, together with his other actions,[10] his failure to discipline the RS MUP personnel who had committed crimes and to protect the civilian population,[11] despite his duties to do so, together with his ability, as the highest authority, to investigate and punish those who had committed crimes.[12] The Appeals Chamber observes that in the jurisprudence of the Tribunal, a failure to intervene to prevent recurrence of crimes or to halt abuses has been taken into account in assessing an accused’s contribution to a joint criminal enterprise and his intent where the accused had some power and influence or authority over the perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.[13] Therefore, Stanišić has not shown that the Trial Chamber applied an erroneous legal standard when it considered instances of his failures to act in assessing whether he contributed to the JCE.

[…]

733. Turning to Župljanin’s arguments in relation to his capacity or ability to act, based on the same reasoning, the Appeals Chamber finds no merit in Župljanin’s attempt to conflate the Appeals Chamber’s statement that the objective element of commission by omission requires, at a minimum, an “elevated degree of ‘concrete influence’”,[14] with the significant contribution requirement of joint criminal enterprise liability.[15] For the same reason, the Appeals Chamber dismisses Župljanin’s argument that the Trial Chamber failed to make findings or particularised findings as to whether “he had such a high degree of control over his subordinates that his ‘omission’ could count as part of the actus reus of commission”.[16]

See also paras 731-732, 734.

[1] Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 190, 207.

[2] See Tadić Appeal Judgement, paras 188, 227-228. See also Krajišnik Appeal Judgement, para. 662. As for the elements of joint criminal enterprise liability, see further Brđanin Appeal Judgement, paras 364-365, 429-430; Stakić Appeal Judgement, paras 64-65. As for the elements of commission by omission, see further Orić Appeal Judgement, para. 43, Brđanin Appeal Judgement, para. 274, Galić Appeal Judgement, para. 175, Ntagerura et al. Appeal Judgement, para. 334, Blaškić Appeal Judgement, para. 663.

[3] Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 103, referring to Brđanin Appeal Judgement, para. 430. See Krajišnik Appeal Judgement, paras 215, 696. See also Popović et al. Appeal Judgement, para. 1378.

[4] Krajišnik Appeal Judgement, para. 696.

[5] See Šainović et al. Appeal Judgement, paras 1233, 1242. Cf. Krajišnik Appeal Judgement, para. 696.

[6] Krajišnik Appeal Judgement, para. 215; Brđanin Appeal Judgement, para. 427; Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 227. The Appeals Chamber observes that the Trial Chamber correctly recalled the jurisprudence in this regard (see Trial Judgement, vol. 1, para. 103).

[7] Popović et al. Appeal Judgement, para. 1653; Šainović et al. Appeal Judgement, para. 985; Krajišnik Appeal Judgement, paras 215, 695-696. See Šainović et al. Appeal Judgement, paras 1233, 1242.

[8] The Appeals Chamber considers Stanišić’s reliance on the Tolimir Trial Judgement inapposite as, in the reference cited by Stanišić, the Tolimir Trial Chamber recalled in general terms the well-established jurisprudence on liability by omission pursuant to Article 7(1) of the Statute, which does require proof of a legal duty to act, without addressing the specific issue at stake in the present case (see Tolimir Trial Judgement, para. 894, fn. 3528).

[9] See Šainović et al. Appeal Judgement, para. 1233, 1242. See also Šainović et al. Appeal Judgement, para. 1045; Martić Appeal Judgement, para. 28; Krajišnik Appeal Judgement, paras 193-194, 204.

[10] See, e.g. Trial Judgement, vol. 2, para. 734, 737-744. See also Trial Judgement, vol. 2, paras 58, 588, 591-595, 729‑736.

[11] Trial Judgement, vol. 2, paras 695, 698, 754. See Trial Judgement, vol. 2, paras 18, 37-43.

[12] Trial Judgement, vol. 2, para. 755.

[13] See Šainović et al. Appeal Judgement, paras 1233, 1242 (The Appeals Chamber found that the accused’s duty to prevent or punish his subordinates’ crimes and failure to do so was “not determinative of his criminal responsibility” for joint criminal enterprise liability but “was part of the circumstantial evidence from which his intent and contribution to the JCE could be inferred” (Šainović et al. Appeal Judgement, para. 1242)); Krajišnik Appeal Judgement, para. 194 (the Appeals Chamber found that the accused had “some power and influence” and “the power to intervene” and that the Krajišnik Trial Chamber could rightfully consider his failure to intervene “as one of the elements tending to prove [his]] acceptance of certain crimes” (Krajišnik Appeal Judgement, para. 194)); Kvočka et al. Appeal Judgement, paras 195-196 (The Appeals Chamber observed that in concluding that the accused’s participation in the functioning of the camp had furthered the criminal purpose, the Trial Chamber had considered inter alia its findings “that he held a high‑ranking position in the camp and had some degree of authority over the guards; that he had sufficient influence to prevent or halt some of the abuses but that he made use of that influence only very rarely” (Kvočka et al. Appeal Judgement, para. 195 (internal citations omitted)). See also Krajišnik Appeal Judgement, paras 216(e), 217. For further factual background of the jurisprudence cited in the current footnote, see Milutinović et al. Trial Judgement, paras 773, 777, 782; Krajišnik Trial Judgement, paras 1118-1119, 1121(e), 1121(j); Kvočka et al. Trial Judgement, paras 372, 395-396. See further infra [Stanišić and Župljanin Appeal Judgement]], para. 734.

[14] Mrkšić and [ljivančanin Appeal Judgement, para. 156; Orić Appeal Judgement, para. 41; Blaškić Appeal Judgement, para. 664.

[15] Cf. Mrkšić and [ljivančanin Appeal Judgement, para. 156, where the Appeals Chamber rejected Veselin Šljivančanin’s attempt to conflate the substantial contribution requirement of the objective element of aiding and abetting with the elevated degree of concrete influence. The Appeals Chamber further considers inapposite Župljanin’s contention that “anyone’s failure to prevent crimes” would satisfy the objective element of joint criminal enterprise in the absence of a threshold of concrete influence over subordinates (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. 132). His argument in this respect once more ignores the requirements for joint criminal enterprise liability, that an accused must make at least a significant contribution to the execution of the common plan (Popović et al. Appeal Judgement, para. 1378; Kvočka et al. Appeal Judgement, paras 97-98; supra [Stanišić and Župljanin Appeal Judgement]], para. 110. See Šainović et al. Appeal Judgement, paras 954, 987).

[16] Župljanin Appeal Brief, para. 135.The Appeals Chamber further notes thatŽupljanin’s submissions that the Trial Chamber failed to make particularised findings regarding his control and authority over his subordinates is based on the unsupported statement that the Trial Chamber relied upon his failure to fulfil his duties with respect to every Indictment crime it evaluated, and considered his every inaction in assessing his contribution to the JCE. As explained below, the Appeals Chamber considers that Župljanin’s assertion misinterprets the Trial Judgement (see Župljanin Appeal Brief, para. 135. See infra [Stanišić and Župljanin Appeal Judgement]], paras 736-813).

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