Position of authority

Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

284. […] Turning to the question of whether the Trial Chamber erred in taking his stature into account as an aggravating circumstance, the Appeals Chamber recalls that it is settled in the jurisprudence of the Tribunal and the ICTY that a superior position in itself does not constitute an aggravating factor. Rather, it is the abuse of such position which may be considered as an aggravating factor.[1]

285. A review of the Trial Chamber’s findings on this point reveals that it not only took into account the Appellant’s stature, but also the influence he derived from his stature[2] and the use he made of his influence by lending encouragement and approval to the participants in the killings.[3] The Appeals Chamber finds that the Trial Chamber thus implicitly found that the Appellant abused his position and influence in order to facilitate the commission of the crimes. Accordingly, the Appeals Chamber finds no discernable error in the Trial Chamber’s findings. Therefore this sub-ground of appeal is dismissed.

309. The Trial Chamber found that the influence the Appellant derived from his stature made it likely that others would follow his example, and that this was an aggravating factor.[4] The Appeals Chamber recalls that the Trial Chamber implicitly found that the Appellant abused this influence.[5]

310. This interpretation is supported by the Trial Chamber’s findings that the Appellant participated in the attack against Murambi Technical School and Kaduha Parish by lending encouragement and approval to the attackers and that, since the Appellant was a respected national figure in Rwandan society and well-known in his native region (Gikongoro), the assailants at those places would have viewed his presence during the attacks as approval of their conduct, particularly after his invocation of government support.[6] In so doing, the Trial Chamber did not distinguish between his formal or de facto authority and influence, but limited itself to established facts. The Trial Chamber therefore did fully take into account as aggravating factors the Appellant’s stature in Rwanda society, as well as the abuse of the influence he derived from it.

[1] Stakić Appeal Judgement, para. 411, quoting Kayishema and Ruzindana Appeal Judgement, paras 358–359; Babić Sentencing Appeal Judgement, para. 80; Kamuhanda Appeal Judgement, para. 347; Aleksovski Appeal Judgement, para. 183; Ntakirutimana Appeal Judgement, para. 563; Krstić Trial Judgement, para. 709.

[2] Trial Judgement, para. 439.

[3] Trial Judgement, para. 433.

[4] Trial Judgement, para. 439, referring to its previous factual findings on the Appellant’s stature in Rwandan society (see Trial Judgement, paras 54-60).

[5] See above Chapter II, Section K, para. 285.

[6] Trial Judgement, paras 400, 403. The Trial Chamber thus did not regard as an aggravating circumstance the fact that the Appellant encouraged and approved of the attacks, as these were elements of the crime, but rather took into account the fact that he abused his influence by doing so.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

170. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing. […]

[1] Renzaho Appeal Judgement, para. 615; Rukundo Appeal Judgement, para. 250; Seromba Appeal Judgement, para. 230; Ndindabahizi Appeal Judgement, para. 136. See also Dragomir Milošević Appeal Judgement, para. 302; Simba Appeal Judgement, para. 284.

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Notion(s) Filing Case
Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

258. The Appeals Chamber recalls that liability for planning requires that one or more persons design the criminal conduct constituting one or more statutory crimes which are later perpetrated.[1] A conviction for planning does not require a finding of a position of authority. Consequently, the question whether Kanyarukiga was in such a position does not have the potential to invalidate the verdict and the Appeals Chamber declines to consider it.[2]

[1] See Milošević Appeal Judgement, para. 268; Nahimana et al. Appeal Judgement, para. 479; Kordić and Čerkez Appeal Judgement, para. 26.

[2] See supra, para. 7 (setting out the standards of appellate review).

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Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

360. In its Judgement, the Trial Chamber considered the correct definition for ordering under Article 6(1) of the Statute to be as follows:

“Ordering” refers to a situation where an individual has a position of authority and uses that authority to order – and thus compel – another individual, who is subject to that authority, to commit a crime. Criminal responsibility for ordering the commission of a crime under the Statute implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it. [1]

361. Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber’s approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required.[2] It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.[3] The Trial Chamber thus committed no legal error in its enunciation of the elements of ordering. 

363. It should be recalled that authority creating the kind of superior-subordinate relationship envisaged under Article 6(1) of the Statute for ordering may be informal or of a purely temporary nature. Whether such authority exists is a question of fact. […]

[1] Trial Judgement, para. 382.

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

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

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

250. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing.[1] The Appeals Chamber considers that Rukundo has not demonstrated that it was unreasonable for the Trial Chamber to conclude that, as a military chaplain and priest, he would be viewed as a person of influence. Furthermore, a review of the Trial Chamber’s findings on this point reveals that it not only took into account Rukundo’s influence but also the use to which he put that influence.

[1] Seromba Appeal Judgement, para. 230; Simba Appeal Judgement, para. 284; Ndindabahizi Appeal Judgement, para. 136. See also Dragomir Milošević Appeal Judgement, para. 302.

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

80. […] The Appeals Chamber notes that, contrary to the Defence’s assertion, the position of an accused in “high political offices” has been considered as an aggravating factor for the purposes of sentencing even where an accused’s leadership of a joint criminal enterprise is not at issue.[1]  Several cases before the International Tribunal in which the mode of liability of joint criminal enterprise was not at issue illustrate that a Trial Chamber has the discretion to take into account, as an aggravating circumstance, the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] A high rank in the military or political field does not, in itself, merit a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence.[3]  Consequently, what matters is not the position of authority taken alone, but that position coupled with the manner in which the authority is exercised.[4] For instance, in the Aleksovski case, the Appeals Chamber considered that the superior responsibility of the appellant, who was a prison warden, “seriously aggravated [his] offences, [as] [i]nstead of preventing it, he involved himself in violence against those whom he should have been protecting”.[5] In Ntakirutimana, the ICTR Appeals Chamber concurred with the Trial Chamber that the abuse of the appellant’s personal position in the community was an aggravating circumstance.[6] 

81. In the present case, the Trial Chamber did not hold that the Appellant’s position as a regional political leader in itself constituted an aggravating circumstance. The Trial Chamber thoroughly considered the Appellant’s behaviour as a regional political leader and stressed that it considered his leadership position as an aggravating circumstance because he used his authority to enlist resources of the SAO Krajina to further the joint criminal enterprise, made inflammatory speeches during public events and in the media which prepared the ground for the Serb population to accept that their goals could be achieved through acts of persecution, and amplified the consequences of the campaign of persecutions by allowing it to continue.[7] Therefore, the Appeals Chamber considers that the Trial Chamber correctly found that the Appellant’s leadership position was an aggravating circumstance.

[1] Brđanin Trial Judgement, para. 1099. Having found that a joint criminal enterprise was not an appropriate mode of liability to describe the individual criminal responsibility of Brđanin, the Trial Chamber found that his position of authority at the highest level of the political hierarchy and the abuse of such authority constituted an aggravating factor of considerable weight.  

[2] See Aleksovski Appeal Judgement, para. 183; Čelebići Appeal Judgement, para. 745; Kupreškić Appeal Judgement, para. 451.

[3] Krstić Trial Judgement, para. 709.

[4] Kayishema and Ruzindana Appeal Judgement, paras 358 - 359.

[5] Aleksovski Appeal Judgement, para. 183.

[6] Ntakirutimana Appeal Judgement, para. 563.

[7] Sentencing Judgement, para. 61.

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Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

323. […] Even assuming that Nsengiyumva wielded some authority over civilians, his mere position of authority cannot suffice to infer that he must have ordered them to commit the crime.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

324. The Appeals Chamber recalls that a Trial Chamber “shall take into account […] any aggravating circumstances”,[1] which may include the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] What matters is not the position of authority taken alone, but that position coupled with the manner in which the authority was exercised: abuse of superior position may be considered an aggravating factor.[3]

[1] Rules, Rule 101 (emphasis added).

[2] See Naletilić and Martinović Appeal Judgement, para. 613; Kupreškić et al. Appeal Judgement, para. 451.

[3] Stakić Appeal Judgement, para. 411. See also Kayishema and Ruzindana Appeal Judgement, paras. 358-359; Babić Sentencing Appeal Judgement, para. 80; Kamuhanda Appeal Judgement, para. 347; Aleksovski Appeal Judgement, para. 183; Ntakirutimana Appeal Judgement, para. 563, Krstić Trial Judgement, para. 709.

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Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

164. The Appeals Chamber recalls that the actus reus of ordering requires no formal superior-subordinate relationship between the orderer and a physical perpetrator.[1] It is sufficient that there is proof of a position of authority on the part of the accused that would compel another person to commit a crime.[2] […]

[1] Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, para. 28; Semanza Appeal Judgement, para. 361.

[2] Semanza Appeal Judgement, para. 361.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

302. […] [T]he Appeals Chamber recalls that it is settled jurisprudence of this Tribunal that while a position of authority, even at a high level, does not automatically warrant a harsher sentence, the abuse of such may indeed constitute an aggravating factor.[1] The Appeals Chamber further reiterates, Judge Liu dissenting, that this holds true in the context of a conviction under Article 7(1) of the Statute, including the mode of responsibility for planning and ordering crimes.[2] Before arriving at its conclusion, the Trial Chamber in the instant case specifically took into account Milošević’s high rank within the VRS, the ensuing special responsibility to uphold the standards of international humanitarian law, and the fact that he was highly respected by the SRK staff.[3] In this regard, the Appeals Chamber recalls that whereas the mode of liability of ordering requires that the person giving the order has a position of authority, the abuse of such authority may still be considered an aggravating factor in sentencing.[4] The Trial Chamber was mindful of the fact that the superior position per se does not constitute an aggravating factor and did not consider Milošević’s authority to give orders to that effect.[5] Rather, it took into account the particularly high level of Milošević’s authority and the high esteem of his soldiers in assessing whether his conduct amounted to an abuse of his superior position. Milošević has failed to demonstrate any error in this regard.

303. […] In addition, the Appeals Chamber recalls that the superior’s abuse of his position of a high level of authority may also be taken into consideration for a conviction under Article 7(3) of the Statute.[6]

[1] See, e.g., Martić Appeal Judgement, para. 350; Hadžihasanović and Kubura Appeal Judgement, para. 320; Blagojević and Jokić Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 411; M. Nikolić Appeal Judgement, para. 61. Moreover, the Appeals Chamber recalls that where responsibility under both Article 7(1) and Article 7(3) is alleged under the same counts, and where the legal requirements pertaining to both of these modes of responsibility have been established, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing (Blaškić Appeal Judgement, paras 91, 727).

[2] Naletilić and Martinović Appeal Judgement, paras 613, 626; Blagojević and Jokić Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 411; Blaškić Appeal Judgement, para. 91.

[3] Trial Judgement, para. 999.

[4] Galić Appeal Judgement, para. 412.

[5] Trial Judgement, para. 996, fn. 3202.

[6] Hadžihasanović and Kubura Appeal Judgement, para. 320. The Appeals Chamber notes that in Naletilić and Martinović, the Appeals Chamber found that the Trial Chamber erred in finding that Martinović’s and Naletilić’s respective superior positions constituted aggravating factors for their convictions under Article 7(3) (Naletilić and Martinović Appeal Judgement, paras 613, 626). However, the Appeals Chamber emphasizes that this finding was not concerned with the abuse of such position as is the case in the present instance.

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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

101. The Appeals Chamber affirms that the de facto or de jure position of employment within the camp is only one of the contextual factors to be considered by the Trial Chamber in determining whether an accused participated in the common purpose. A position of authority, however, may be relevant evidence for establishing the accused’s awareness of the system, his participation in enforcing or perpetuating the common criminal purpose of the system, and, eventually, for evaluating his level of participation for sentencing purposes.[1]

103. The Appeals Chamber notes that in assessing the level of contribution to a joint criminal enterprise which can be inferred from positions held in a camp, the Trial Chamber reviewed some of the post-World War II jurisprudence. Upon review, the Trial Chamber held that:

The concentration camp cases seemingly establish a rebuttable presumption that holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein. An intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp’s functioning.[2]

The Appeals Chamber finds that the Trial Chamber did not err in its discussion of these early cases. As it is clear that there is no requirement of “membership” in a group, beyond playing a role in a camp, in order to incur joint criminal enterprise responsibility, Appellant Prcać’s submission is rejected.

104. In another related argument, Appellant Radić submits that he should not be found guilty as a co-perpetrator since the Trial Chamber acquitted him of all charges based on superior responsibility.[3] The suggestion implicit in this argument is that a person lacking sufficient authority to be considered a superior would necessarily also lack sufficient authority to make a “significant contribution” to a systemic joint criminal enterprise. The Appeals Chamber notes that participation in a joint criminal enterprise pursuant to Article 7(1) of the Statute and superior responsibility pursuant to Article 7(3) of the Statute are distinct categories of individual criminal responsibility, each with specific legal requirements.[4] Joint criminal enterprise responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.[5] Moreover, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute for the same crime. Where the legal requirements of both forms of responsibility are met, a conviction should be entered on the basis of Article 7(1) only, and the superior position should be taken into account as an aggravating factor in sentencing.[6] Thus, Appellant Radić’s argument is dismissed.

[1] Krnojelac Appeal Judgement, para. 96.

[2] Trial Judgement, para. 278 (footnote omitted).

[3] Radić Reply Brief paras 52-53, 62-63.

[4] Blaskić Appeal Judgement, para. 91; see below, paras 144, 383.

[5] See above, para 97.

[6] See Blaskić Appeal Judgement, para. 91, referring to Čelebići Appeal Judgement, para. 745.

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Notion(s) Filing Case
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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Notion(s) Filing Case
Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

Again, pursuant to relevant findings in the Stakić Appeal Judgement, the Appeals Chamber in the Simić case found proprio motu that the Trial Chamber erred in the exercise of its discretion in finding that the Appellant’s professional background as a medical doctor constituted an aggravating circumstance. See paragraphs 270-274.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

357.    The Appeals Chamber finds that the fact that the Accused held a position of authority or leadership may constitute an aggravating factor in sentencing. In the Kambanda Appeal Judgement, this Chamber, in affirming the sentence imposed by the Trial Chamber, expressly noted the Trial Chamber finding that “the aggravating circumstances surrounding the crimes negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post at the time he committed the said crimes.”[1] Furthermore, in the Aleksovski Appeal Judgement, ICTY Appeals Chamber maintained that the Appellant’s “superior responsibility as a warden seriously aggravated the Appellant’s offences, [and that] instead of preventing it, he involved himself in violence against those whom he should have been protecting …”.[2]

358.    The Appeals Chamber would interpret the existing jurisprudence on this point as follows: Article 6(3) imposes liability on a superior if he knew or had reason to know that his subordinate was about to commit such acts or had done so, and had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators. The mere fact that an accused has command authority is not an aggravating circumstance in sentencing, in respect of Article 6(3) charge; that goes only to conviction. However, a finding that superior responsibility lies because of such failure to prevent or punish does not preclude a further finding that the manner in which an accused exercises his command can be an aggravating circumstance in relation to sentencing. […]

[1] Kambanda Trial Judgement, para. 62.

[2] Aleksovski Appeal Judgement, para. 183.

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ICTR Statute Article 23(2) ICTY Statute Article 24(2) ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)