International law abetting criminal acts on foreign soil

[5] The Appeals Chamber is also not persuaded by Ngirabatware’s claim that he lacked sufficient notice that the distribution of weapons had encouraged the killings of Tutsis. See Appeal Brief, para. 40. Paragraph 16 of the Indictment explicitly alleged that Ngirabatware distributed weapons thereby aiding and abetting the killings of Tutsis.

51. The Appeals Chamber draws attention to the distinction between the mental element required for aiding and abetting and that required for co-perpetration. In the case of aiding and abetting, the requisite mental element is knowledge that the acts committed by the aider and abettor further the perpetration of a specific crime by the principal offender. In the case of co-perpetration, the intent to perpetrate the crime or to pursue the joint criminal purpose must be shown.[1] The Appeals Chamber also recalls that in the Aleksovski Appeals Judgement it followed the Furundžija Judgement and held that “it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that […] the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.”[2] The Appeals Chamber also stated that “the aider and abettor [must be aware] of the essential elements of the crime committed by the principal (including his relevant mens rea).” The Appeals Chamber notes that no cogent reason was given which would justify this case-law being amended.[3]

52. The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration. […]

[1] See Tadić Appeals Judgement, para. 229.

[2] Aleksovski Appeals Judgement, para. 162.

[3] Aleksovski Appeals Judgement, para. 107. See also para. 109: “It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.”

138. […] As the Trial Chamber observed, there is an overlap between Article 4(3) as the general provision enumerating punishable forms of participation in genocide and Article 7(1) as the general provision for criminal liability which applies to all the offences punishable under the Statute, including the offence of genocide.[1] There is support for a position that Article 4(3) may be the more specific provision (lex specialis) in relation to Article 7(1).[2] There is, however, also authority indicating that modes of participation enumerated in Article 7(1) should be read, as the Tribunal’s Statute directs, into Article 4(3), and so the proper characterization of such individual’s criminal liability would be that of aiding and abetting genocide.[3]

139. The Appeals Chamber concludes that the latter approach is the correct one in this case.

140. This […] raises the question of whether, for liability of aiding and abetting to attach, the individual charged need only possess knowledge of the principal perpetrator’s specific genocidal intent, or whether he must share that intent. The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime.[4] This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent. The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.

142. […] there is authority to suggest that complicity in genocide, where it prohibits conduct broader than aiding and abetting, requires proof that the accomplice had the specific intent to destroy a protected group. Article 4 of the Statute is most naturally read to suggest that Article 4(2)’s requirement that a perpetrator of genocide possess the requisite “intent to destroy” a protected group applies to all of the prohibited acts enumerated in Article 4(3), including complicity in genocide.[5] There is also evidence that the drafters of the Genocide Convention intended the charge of complicity in genocide to require a showing of genocidal intent. […] The texts of the Tribunal’s Statute and of the Genocide Convention, combined with the evidence in the Convention’s travaux préparatoires, provide additional support to the conclusion that the drafters of the Statute opted for applying the notion of aiding and abetting to the prohibition of genocide under Article 4.[6]

[1] See ibid. [Trial Judgement], para. 640; see also Semanza Trial Judgement, paras. 394 - 395 & n. 655.

[2] See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal [Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002], para. 47; Semanza Trial Judgement, paras. 394 – 395.

[3] See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47.

[4] See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent”); Vasiljević Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).

[5] The same analysis applies to the relationship between Article II of the Genocide Convention, which contains the requirement of specific intent, and the Convention’s Article III, which lists the proscribed acts, including that of complicity.

[6] As it is not at issue in this case, the Appeals Chamber takes no position on the mens rea requirement for the conviction for the offence of complicity in genocide under Article 4(3) of the Statute where this offense strikes broader than the prohibition of aiding and abetting.

• Joint criminal enterprise |
• Aiding and abetting

89. The Appeals Chamber notes that in the Vasiljević Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.[1]

90. Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.

91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself.[2] Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.[3]

[1] Vasiljević Appeal Judgement para. 102; see also Tadić Appeal Judgement, para. 229; Krnojelac Appeal Judgement paras 31-33.

[2] Prosecutor v. Milutinović et al., Case No.: IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise, 21 May 2003, para. 20.

[3] Vasiljević Appeal Judgement, para. 102; Krnojelac Appeal Judgement, para. 75 (“[T]he acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent.”)

74. The Appeals Chamber recalls that “an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.”[1] The Appeals Chamber has explained that “[a]n accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.”[2] Where this form of aiding and abetting has been a basis of a conviction, “it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered together with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it.”[3]

75. In view of Kalimanzira’s position as directeur de cabinet of the Ministry of Interior, it was reasonable for the Trial Chamber to determine that his silent presence during Ndayamabaje’s inflammatory speech would have offered tacit approval of its message. The basis of Kalimanzira’s conviction, however, rests on the Trial Chamber’s conclusion that Kalimanzira’s tacit approval not only sanctioned Ndayambaje’s message, but in fact substantially contributed to killings which occurred after the ceremony.[4]

[1] Muvunyi Appeal Judgement, para. 79. See also Seromba Appeal Judgement, para. 44; Blagojević and Jokić Appeal Judgement, para. 127.

[2] Brđanin Appeal Judgement, para. 273. See also Brđanin Appeal Judgement, para. 277.

[3] Brđanin Appeal Judgement, para. 277.

[4] Trial Judgement, para. 292.

• Aiding and abetting |
• Substantial effect

86. The Appeals Chamber has explained that an “aider and abettor commit[s]] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support ha[s] a substantial effect on the perpetration of the crime.”[1] Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”; such assistance need not “serve as condition precedent for the commission of the crime.”[2] With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [. ]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[3] Specific intent crimes such as genocide require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[4]

87. Kalimanzira’s contention that the Trial Chamber erred in finding that he made a substantial contribution to the killings at Kabuye hill is not convincing. The Trial Chamber reasonably concluded that he substantially contributed to the massacre by encouraging Tutsis to seek refuge at Kabuye hill and by providing armed reinforcements to those trying to kill the Tutsis there. Kalimanzira’s assertion that he did not substantially aid the assault on Kabuye hill rests on his claim that no credible witnesses who were also principal perpetrators placed him there.[5] However, this claim does not take into account the evidence provided by Tutsi survivors of the attacks. It was on the basis of their testimonies that the Trial Chamber placed him at Kabuye hill on 23 April 1994.[6] The Appeals Chamber recalls that it is not necessary for a principal perpetrator to be aware of the aider and abettor’s contribution.[7] It further recalls the Trial Chamber’s finding that the attacks at Kabuye hill involved a large number of individuals over a broad terrain and long period of time.[8] In this context, it was reasonable for the Trial Chamber to conclude that Kalimanzira provided substantial assistance to the massacre at Kabuye hill even if this assistance was not known to principal perpetrators who testified before it.[9]

[1]Seromba Appeal Judgement, para. 44. See also Muvunyi Appeal Judgement, para. 79; Blagojević and Jokić Appeal Judgement, para. 127.

[2] Blagojević and Jokić Appeal Judgement, para. 134.

[3] Muvunyi Appeal Judgement, para. 79.

[4] Blagojević and Jokić Appeal Judgement, para. 127.

[5] See Kalimanzira Appeal Brief, paras. 196-201. See also Kalimanzira Reply Brief [Callixte Kalimanzira’s Brief in Reply, 13 April 2010] para. 24.

[6] See Trial Judgement, paras. 379-383, 393.

[7] See Tadić Appeal Judgement, para. 229.

[8] See Trial Judgement, paras. 386, 387.

[9] The Appeals Chamber further recalls that “the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.” Blaškić Appeal Judgement, para. 48. See also Blagoje Simić Appeal Judgement, para. 85.

• Aiding and abetting |
• Actus reus |
• Specific direction

424. The Appeals Chamber has previously considered within the discussion of the actus reus of aiding and abetting the finding that an act or omission of an aider or abettor be “specifically directed” toward the furtherance of the crimes of the principal perpetrators.[1] The Appeals Chamber recalls, however, that “specific direction has not always been included as an element of the actus reus of aiding and abetting.”[2] It further recalls its conclusion that such a finding of specific direction “will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime”.[3] In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”[4] and finds that there is no “cogent reason”[5] to depart from this jurisprudence.

[1] Blagojević and Jokić Appeal Judgement, para. 127; Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, paras 45-46; Vasiljević Appeal Judgement, para. 102; Tadić Appeal Judgement, para. 229. See also Rukundo Appeal Judgement, para. 210; Ntagerura et al. Appeal Judgement, para. 370; Muvunyi I Appeal Judgement, para. 79; Seromba Appeal Judgement, para. 139.

[2] Blagojević and Jokić Appeal Judgement, para. 189.

[3] Blagojević and Jokić Appeal Judgement, para. 189.

[4] Mrkšić and [ljivančanin Appeal Judgement, para. 159, confirming Blagojević and Jokić Appeal Judgement, para. 189.

[5] Aleksovski Appeal Judgement, para. 107.

425. The Appeals Chamber notes that the physical presence of an aider and abettor at or near the scene of the crime may be a relevant factor in cases of aiding and abetting by tacit approval.[1] Further, the actus reus of aiding and abetting may be fulfilled remotely.[2] It is also well established that the actus reus of aiding and abetting may be fulfilled before, during, or after the principal crime has been perpetrated.[3] Thus, Sredoje Lukić’s submission that the Trial Chamber erroneously construed the actus reus of aiding and abetting is dismissed.

[1] Brđanin Appeal Judgement, paras 273, 277. See also Kayishema and Ruzindana Appeal Judgement, paras 201-202.

[2] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, para. 48.

[3] Blagojević and Jokić Appeal Judgement, para. 132. See also Blaškić Appeal Judgement, para. 48; Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.

437. The Trial Chamber found that Sredoje Lukić, through his armed presence at and/or around the Memić House, provided practical assistance to the commission of the crimes committed at the Memić House and therefore found him guilty of aiding and abetting the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[1] The Trial Chamber correctly observed that the practical assistance of an aider and abetter must have a “substantial effect” upon the commission of the crimes in order for the actus reus to be established.[2] However, in finding that the actus reus of aiding and abetting was established, the Trial Chamber did not explicitly find that Sredoje Lukić’s practical assistance had a “substantial effect” on the commission of the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[3] The Appeals Chamber considers that an explicit finding of “substantial effect” should have been made and that the Trial Chamber’s failure to do so constitutes an error. Nonetheless, the Appeals Chamber is not convinced that this error invalidates the Trial Judgement.

438. […] the Appeals Chamber recalls that the question whether an act has a substantial effect on the commission of a crime necessitates a fact-based inquiry.[4] […]

[1] Trial Judgement, para. 986.

[2] Trial Judgement, para. 901.

[3] See Trial Judgement, para. 984.

[4] Blagojević and Jokić Appeal Judgement, para. 134.

428. It is well established that the mens rea of aiding and abetting requires that an aider and abettor know that his acts would assist in the commission of the crime by the principal perpetrator and must be aware of the “essential elements” of the crime.[1] It does not require that he shares the intention of the principal perpetrator of such crime, as Sredoje Lukić submits. […]

440. The Appeals Chamber further recalls that an aider and abettor must know that his acts would assist the commission of the crime by the principal perpetrators and must be aware of the “essential elements” of the crime committed by the principal perpetrator.[2] […]

458. The Trial Chamber’s statement of the law with regard to the mens rea of aiding and abetting is correct.[3] The special intent crime of persecutions requires in addition that:

[the aider and abettor] be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration.[4]

[1] Blagojević and Jokić Appeal Judgement, para. 221; Aleksovski Appeal Judgement, para. 162. See also Blaškić Appeal Judgement, para. 49; Vasiljević Appeal Judgement, para. 102; Rukundo Appeal Judgement, para. 53; Karera Appeal Judgement, para. 321.

[2] Aleksovski Appeal Judgement, para. 162; Blagojević and Jokić Appeal Judgement, para. 221.

[3] Trial Judgement, para. 902.

[4] Simić Appeal Judgement, para. 86, referring to Krnojelac Appeal Judgement, para. 52, Aleksovski Appeal Judgement, para. 162.

149. With respect to aiding and abetting, the Appeals Chamber notes that the Trial Chamber did not explicitly find whether Markač made a “substantial contribution” to relevant crimes by the Special Police.[1] While the Trial Chamber concluded that the evidence it considered proved that Markač’s Failure to Act constituted a significant contribution to the JCE,[2] the Appeals Chamber has held that the threshold for finding a “significant contribution” to a JCE is lower than the “substantial contribution” required to enter a conviction for aiding and abetting.[3] Thus the Trial Chamber’s finding of a significant contribution is not equivalent to the substantial contribution required to enter a conviction for aiding and abetting.

[1] See generally [Gotovina and Markač] Trial Judgement.

[2] See [Gotovina and Markač Appeal Judgement], para. 138.

[3] See Kvočka et al. Appeal Judgement, para. 97; Tadić Appeal Judgement, para. 229. Judge Agius dissents in relation to this paragraph.

162. [. ] The Trial Chamber [in the Furundžija Appeal Judgement] had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal.[1] It is clear that what must be shown is that the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.

[1] Ibid. [Furund`ija Appeal Judgement], para. 245.

127. […] The actus reus need not serve as condition precedent for the crime and may occur before, during, or after the principal crime has been perpetrated.[1] The Appeals Chamber has also determined that the actus reus of aiding and abetting may be satisfied by a commander permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of a crime.[2] […]

134. The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry. […] The Appeals Chamber, however, has already held that it is not required that the act of assistance serve as a condition precedent for the commission of the crime.[3] In making its findings, the Trial Chamber was aware of the more limited scope of assistance provided by the Bratunac Brigade in relation to other elements of the VRS and civilian authorities.[4] Nonetheless, the Trial Chamber described the contribution of the resources made available by Blagojević as “practical assistance” to the crimes which had a substantial effect on the commission of the crimes.[5] The Appeals Chamber recalls that, in a similar context, it reached the same conclusion in the Krstić Appeal Judgement.[6]

187. In the Blaškić Appeal Judgement, the Appeals Chamber considered whether the actus reus of aiding and abetting requires causation between the act of the accused and the act of the principal, or in other words, whether the contribution “must have a direct and important impact on the commission of the crime.”[7] The Appeals Chamber found that “proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.”[8] However, the Appeals Chamber reiterated that one of the requirements for the actus reus of aiding and abetting is that the support of the aider and abettor have a substantial effect upon the perpetration of the crime.[9]

188. In reaching this conclusion, in the Blaškić Appeal Judgement the Appeals Chamber referenced the definition of aiding and abetting in the Vasiljević Appeal Judgement, which is identical to that set out in the Tadić Appeal Judgement, and which, in specifying that the assistance given by an aider and abettor must be specifically directed, also contrasted aiding and abetting liability with that of joint criminal enterprise.[10] However, in the Blaškić Appeal Judgement the Appeals Chamber also found that the Trial Chamber correctly held that the standard for the actus reus was that set out in the Furundžija Trial Judgement: “consist[ing] of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[11]

189. The Appeals Chamber observes that while the Tadić definition has not been explicitly departed from, specific direction has not always been included as an element of the actus reus of aiding and abetting.[12] This may be explained by the fact that such a finding will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime. The Appeals Chamber also considers that, to the extent specific direction forms an implicit part of the actus reus of aiding and abetting, where the accused knowingly participated in the commission of an offence and his or her participation substantially affected the commission of that offence, the fact that his or her participation amounted to no more than his or her “routine duties” will not exculpate the accused.

195. The Appeals Chamber rejects the proposition that independent initiative, power, or discretion must be shown in order for the actus reus of aiding and abetting to be established. It recalls its previous rejection of the contention that there exists a special requirement that a position of superior authority be established before liability for aiding and abetting under Article 7(1) of the Statute can be recognized.[13] The apparent implication of that argument was that a person lacking sufficient authority to be considered a superior or to be acting independently, rather than in the course of routine duties, would necessarily also lack the sufficient authority or capacity to make a significant contribution to the commission of the crime. The Appeals Chamber considers that such a determination is to be made on a case by case basis. In this sense, an accused’s position of authority and ability to exercise independent initiative constitute contextual factors that may go to proving the significance of the accused's assistance in the commission of the crime.

[1] Blaškić Appeal Judgement, para. 48. See also Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.

[2] Krstić Appeal Judgment, paras. 137, 138, 144.

[3] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, para. 48.

[4] See, e.g., Trial Judgement, para. 191 (noting the primary role played by the MUP in the transport of Bosnian Muslim refugees out of Potočari on 13 July 1995); para. 835 (“In relation to Vidoje Blagojević, the Trial Chamber finds that he was not one of the major participants in the commission of the crimes”).

[5] Trial Judgement, paras. 747, 755, 757.

[6] Krstić Appeal Judgement, paras. 135-138.

[7] Blaškić Appeal Judgement, para. 43.

[8] Blaškić Appeal Judgement, para. 48. See also Simić Appeal Judgement, para. 85.

[9] Blaškić Appeal Judgement, para. 48.

[10] Vasiljević Appeal Judgement, para. 102.

[11] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283 (quoting Furundzija Trial Judgement, para. 249).

[12] Krnojelac Appeal Judgement, para. 37, citing Tadić Appeal Judgment, para. 229; Čelebići Appeal Judgement, para. 345, citing Tadić Trial Judgement, para 688 (where the opposition is drawn between culpability where the accused “intentionally commits” a crime or where he “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime” (emphasis added)). But see Čelebići Appeal Judgement, para. 352.

[13] Čelebići Appeal Judgement, para. 338 (in the context of the offence of unlawful confinement); Aleksovski Appeal Judgement, para. 170 (in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields).

• Aiding and abetting |
• Mens rea

58. The Appeals Chamber considers it firmly established that, to satisfy the mens rea requirement for aiding and abetting, “[i]t must be shown that the aider and abettor knew that his own acts assisted the commission of that specific crime by the principal” (for example, murder, extermination, rape, torture)[1] and that the aider and abettor was “aware of the essential elements of the crime which was ultimately committed by the principal”.[2] Where the mens rea of the principal perpetrator is an element of the principal crime, the aider and abettor need not share the intent of the principal perpetrator,[3] but he or she must be aware of the intent of the principal perpetrator.[4] Mens rea can be established if the aider and abettor is not certain which of a number of crimes will ultimately be committed.[5] In this regard, where an accused “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 abettor.”[6] Accordingly, the Trial Chamber correctly set out the legal standard for the mens rea of aiding and abetting.[7]

Judge Patrick Robinson appended a Partially Dissenting Opinion to the Appeals Judgement on the issue of the Trial Chamber’s discretion and the assessment of a fair and expeditious trial.

[1] Aleksovski Appeal Judgement, para. 163 (citing Tadić Appeal Judgement, para. 229); see also Blaškić Appeal Judgement, para. 45 (citing Vasiljević Appeal Judgement, para. 102); Krnojelac Appeal Judgement, para. 51.

[2] Orić Appeal Judgement, para. 43 (citing Simić Appeal Judgement, para. 86); Aleksovski Appeal Judgement, para. 162.

[3] Krstić Appeal Judgement, para. 140; Krnojelac Appeal Judgement, paras 51-52; Simić Appeal Judgement, para. 86.

[4] Simić Appeal Judgement, para. 86; Brđanin Appeal Judgement, para. 487; Blagojević and Jokić Appeal Judgement, para. 127; Krstić Appeal Judgment, paras 140-141.

[5] Blaškić Appeal Judgement, para. 50 (citing Blaškić Trial Judgement, para. 287); Simić Appeal Judgement, para. 86.

[6] Blaškić Appeal Judgement, para. 50 (citing Blaškić Trial Judgement, para. 287); Simić Appeal Judgement, para. 86.

[7] See Trial Judgement, para. 145.

189. […] For an accused to be convicted of abetting an offence, it is not necessary to prove that he had authority over the principal perpetrator.[1]

190. […] In the Semanza Appeal Judgement, the Appeals Chamber reached a similar conclusion in respect of an “influential” accused who encouraged the rape of Tutsi women by giving “permission” to rape them.[2] […]

[1] Cf. Semanza Appeal Judgement, para. 257 (referring to instigation).

[2] Semanza Appeal Judgement, paras. 256, 257, quoting Semanza Trial Judgement, para. 478.

• Aiding and abetting |
• Omission |
• Recognized mode of liability

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.

• Aiding and abetting |
• Omission |
• Substantial contribution

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.

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

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

[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.

• Aiding and abetting |
• Omission |
• Nature of the legal duty

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).

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.

• Aiding and abetting |
• Omission |
• Capacity to act |
• De jure authority |
• Illegal orders

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.

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.

• Aiding and abetting |
• Omission |
• Basic elements

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.

• Aiding and abetting |
• Omission |
• Actus reus

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.

• Aiding and abetting |
• Substantial contribution

In footnote 526, the Appeals Chamber noted that:

The Appeals Chamber recalls that “the threshold for finding a “significant contribution” to a [joint criminal enterprise] is lower than the “substantial contribution” required to enter a conviction for aiding and abetting.” See Gotovina and Markač Appeal Judgement, para. 149. […]

147. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to 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.[1] The Appeals Chamber has explained that an individual can be found liable for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.[2] When this form of aiding and abetting has been a basis for a conviction, “it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it.” [3]

149. With respect to Ndahimana’s arguments regarding the number of perpetrators involved, the Appeals Chamber notes that the Trial Chamber made no specific finding on the number of assailants on 16 April 1994, only concluding that “thousands of persons (assailants and refugees alike) were present” at Nyange Parish. Regardless of the number of assailants, the Appeals Chamber considers that the Trial Chamber was not required to establish that Ndahimana’s presence was noticed by or provided moral support to all perpetrators to find that he substantially contributed to the killings. As for Ndahimana’s argument that his assistance was not necessary as the assailants were already fully determined to commit the crimes at Nyange Church, the Appeals Chamber recalls that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required by law.

In footnote 526, the Appeals Chamber noted that:

[…] The Appeals Chamber also emphasises that, contrary to the Trial Chamber’s suggestion, Ndahimana’s contribution to the 16 April killings in the form of providing moral support by tacit approval is not to be characterised as an omission. See Trial Judgement, heading Section 4.3.2 and paras. 810, 811. See also Brđanin Appeal Judgement, para. 273; Ntagerura et al. Appeal Judgement, para. 338.

[1] See, e.g., Kalimanzira Appeal Judgement, para. 74; Seromba Appeal Judgement, para. 139; Muhimana Appeal Judgement, para. 189. See also Ntawukulilyayo Appeal Judgement, para. 214; Karera Appeal Judgement, para. 321; Nahimana et al. Appeal Judgement, para. 482. See also Perišić Appeal Judgement, paras. 25-36, 38, 73.

[2] Kalimanzira Appeal Judgement, para. 74; Muvunyi Appeal Judgement of 29 August 2008, para. 80; Brđanin Appeal Judgement, para. 273.

[3] Kalimanzira Appeal Judgement, para. 74, citing Brđanin Appeal Judgement, para. 277. See also Muvunyi Appeal Judgement of 29 August 2008, para. 80; Orić Appeal Judgement, para. 42; Brđanin Appeal Judgement, para. 273 (“the combination of a position of authority and physical presence at the crime scene allowed the inference that non-interference by the accused actually amounted to tacit approval and encouragement.”); Kayishema and Ruzindana Appeal Judgement, paras. 201, 202.

[4] Ndahimana Appeal Brief, para. 254. See also ibid., para. 255.

[5] Trial Judgement, para. 698. The Trial Chamber evaluated the number of victims to “hundreds and possibly thousands”. See ibid., paras. 837, 842. Only Witness CNJ estimated the number of perpetrators to be 10,000. See Witness CNJ, T. 5 November 2010 pp. 36, 37. However, the Appeals Chamber observes that the Trial Chamber found that it would only rely on Witness CNJ’s evidence on the 16 April events where corroborated. See Trial Judgement, para. 641.

[6] Blaškić Appeal Judgement, para. 48.

500. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime.[1] More recently, as the Prosecution argued at the Appeal hearing, in the Krstić case the ICTY Appeals Chamber considered that the same principle applies to the Statute’s prohibition of genocide and that “[t]he conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.”[2] In reaching this conclusion, the Krstić Appeals Chamber derived aiding and abetting as a mode of liability from Article 7(1) of the ICTY Statute, but also considered that aiding and abetting constitutes a form of complicity, suggesting that complicity under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute would also encompass aiding and abetting, based on the same mens rea, while other forms of complicity may require proof of specific intent.

501. The Appeals Chamber endorses this view and finds that a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of this Tribunal. […]

[1] See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent”); Vasiljević Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).

[2] Krstić Appeal Judgement, para. 140. It must be stressed that, in the Krstić case, the Appeals Chamber has considered at paragraph 134 of the Judgement that “As has been demonstrated, all that the evidence can establish is that Krstić was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstić possessed the genocidal intent. Krstić, therefore, is not guilty of genocide as a principal perpetrator.”

• Extermination |
• Aiding and abetting

530. The actus reus for aiding and abetting the crime of extermination is that the accused carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of that crime. This support must have a substantial effect upon the perpetration of the crime. The requisite mens rea is knowledge that the acts performed by the aider and abettor assist the commission of the crime of extermination committed by the principal. If it is established that the accused provided a weapon to one principal, knowing that the principal will use that weapon to take part with others in a mass killing, as part of a widespread and systematic attack against the civilian population, and if the mass killing in question occurs, the fact that the weapon procured by the accused “only” killed a limited number of persons is irrelevant to determining the accused’s responsibility as an aider and abettor of the crime of extermination.

• Aiding and abetting |
• Actus reus

52. The Appeals Chamber has explained that an “aider and abettor commit[s]] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime.”[1] It recalls that there is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime nor that such conduct served as a condition precedent to the commission of the crime.[2] It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realisation of that crime,[3] the establishment of which is a “fact-based inquiry”.[4] […]

[1] Seromba Appeal Judgement, para. 44. See also Karera Appeal Judgement, para. 321; Mrkšić and [ljivančanin Appeal Judgement, para. 81; Blagojević and Jokić Appeal Judgement, para. 127.

[2] Mrkšić and [lijivančanin Appeal Judgement, para. 81; Blagojević and Jokić Appeal Judgement, para. 134; Blaškić Appeal Judgment, para. 48.

[3] Mrkšić and [ljivančanin Appeal Judgement, para. 81; Orić Appeal Judgement, para. 43; Nahimana et al. Appeal Judgement, para. 482; Blagojević and Jokić Appeal Judgement, para. 134.

[4] Blagojević and Jokić Appeal Judgement, para. 134.

• Aiding and abetting |
• Mens rea

53. With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [. ]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[1] Specific intent crimes such as genocide also require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[2]

92. […] It further recalls that aiding and abetting as a form of responsibility pursuant to Article 6(1) of the Statute does not require that the accused be in a position of authority.[3] […]

[1] Muvunyi Appeal Judgement, para. 79. See also Karera Appeal Judgement, para. 321; Mrkšić and [ljivančanin Appeal Judgement, para. 49.

[2] Blagojević and Jokić Appeal Judgement, para. 127; Blagoje Simić Appeal Judgement, para. 86.

[3] Muhimana Appeal Judgement, para. 189.

• Aiding and abetting |
• Mens rea

1772. It is firmly established in the jurisprudence of the Tribunal that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator.[1] In addition, the Appeals Chamber recalls that 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 abettor.[2]

1773. The Appeals Chamber has previously defined “specific crime” as referring to, for example, “murder, extermination, rape, torture, wanton destruction of civilian property, etc.”[3] There is no legal requirement that the aider and abettor know every detail of the crime that was eventually committed. Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided.

[1] Haradinaj et al. Appeal Judgement, para. 58, referring to, inter alia, Aleksovski Appeal Judgement, para. 163, Orić Appeal Judgement, para. 43, Simić Appeal Judgement, para. 86.

[2] Haradinaj et al. Appeal Judgement, para. 58; Blaškić Appeal Judgement, para. 50.

[3] Tadić Appeal Judgement, para. 229(iii); Vasiljević Appeal Judgement, para. 102(i).

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).

The Appeals Chamber examined the issue of "specific direction", namely whether a chamber must determine whether the accused's alleged acts and omissions were specifically directed to assist the commission of the concerned crimes.

1622. The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[1] In view of the divergence between the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements, on one hand, and the Perišić Appeal Judgement, on the other hand, [with regard to the issue of whether “specific direction” is an element of the actus reus of aiding and abetting liability] the Appeals Chamber, Judge Tuzmukhamedov dissenting, will determine the correct approach.[2] In so doing, mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases,[3] the Appeals Chamber will consider the jurisprudence of the Tribunal and the ICTR as well as customary international law to ascertain where the law stands on the issue of specific direction.

1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundžija Trial Judgement and confirmed by the Blaškić Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[4] The required mens rea is “the knowledge that these acts assist the commission of the offense”.[5] The Appeals Chamber reaffirms the position taken by the Blaškić Appeal Judgement in this regard.

1650. Accordingly, the Appeals Chamber confirms that the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,[6] accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.[7] Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.[8]

See also paras 1618-1621, 1623-1648, in which the Appeals Chamber examined the jurisprudence of the Tribunal and the ICTR as well as customary international law.

[1] Aleksovski Appeal Judgement, para. 111.

[2] The Appeals Chamber, Judge Tuzmukhamedov dissenting, further considers that the issue at hand concerns the constituent elements of aiding and abetting liability and that its significance warrants the intervention by the Appeals Chamber. In this regard, the Appeals Chamber also recalls that the issue was raised by the parties (Appeal Hearing, 13 Mar 2013, AT. 402-416, 418-420, 440-460). In addition, the Appeals Chamber notes in this context that the Trial Chamber found that Lazarević, as the Priština Corps Commander, was present in Kosovo and regularly inspected his troops in the field throughout the period during which the campaign of forcible displacements was carried out (see Trial Judgement, vol. 3, paras 924-925). However, the Trial Chamber did not find that he was physically present at the crime sites during the commission of the crimes by members of the VJ. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that if it were to adopt the ruling of the Perišić Appeal Judgement requiring “explicit consideration of specific direction” in cases where the aider and abettor is “remote” (see Perišić Appeal Judgement, paras 38-39), it would be necessary to examine whether Lazarević’s assistance was remote as to require explicit consideration of specific direction. This is a matter disputed by the parties (Appeal Hearing, 13 Mar 2013, AT. 402, 418-420, 461-470). Therefore, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that the discussion as to whether the Appeals Chamber should follow the Perišić Appeal Judgement with respect to the issue of specific direction cannot be circumvented in determining the outcome of the present case. The Appeals Chamber further considers that even if the application of the ruling of the Perišić Appeal Judgement would not ultimately invalidate the Trial Judgement, it may “hear appeals in which a party has raised a legal issue that would not lead to the invalidation of the trial judgement but that is nevertheless of general significance to the Tribunal’s jurisprudence”, so long as such issues have a nexus with the case at hand (see supra, para. 19), and references therein; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p. 3).

[3] See Aleksovski Appeal Judgement, paras 101-106, 111.

[4] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, paras 471-481.

[5] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, para. 436.

[6] Mrkšić and Šljivančanin Appeal Judgement, para. 159. In these circumstances, the Mrkšić and Šljivančanin Appeal Judgement was not required to provide cogent reasons as there was no departure from the prevailing jurisprudence. See also Lukić and Lukić Appeal Judgement, para. 424.

[7] The Appeals Chamber notes that during the interval between the rendering of the Mrkšić and Šljivančanin Appeal Judgement and the Perišić Appeal Judgement, three ICTR appeal judgements mention specific direction in passing, but do not consider it to be a required element of this mode of liability. See Ntawukulilyayo Appeal Judgement, paras 214, 216; Rukundo Appeal Judgement, para. 52; Kalimanzira Appeal Judgement, paras 74, 79. See also supra, fn. 5336. Significantly, the Lukić and Lukić Appeal Judgement explicitly states: “In Mrkšić and Šljivančanin, the Appeals Chamber has clarified that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting and finds that there is no ‘cogent reason’ to depart from this jurisprudence” (see Lukić and Lukić Appeal Judgement, para. 424 (internal quotation marks and references omitted, emphasis added)).

[8] See also supra, paras 1621-1622. See Aleksovski Appeal Judgement, para. 111.

229. In light of the preceding propositions it is now appropriate to distinguish between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting.

(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.

(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contribution.

(iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose.

(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.

• Joint criminal enterprise |
• Aiding and abetting

102. Participation in a joint criminal enterprise is a form of “commission” under Article 7(1) of the Statute. The participant therein is liable as a co-perpetrator of the crime(s). Aiding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime. In the context of a crime committed by several co-perpetrators in a joint criminal enterprise, the aider and abettor is always an accessory to these co-perpetrators, although the co-perpetrators may not even know of the aider and abettor’s contribution. Differences exist in relation to the actus reus as well as to the mens rea requirements between both forms of individual criminal responsibility:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.

1765. […] [T]he Appeals Chamber observes that the participation of the aider and abettor need not be a crime in itself.[1] […]

[1] See Šainović et al. Appeal Judgement, para. 1663; Blagojević and Jokić Appeal Judgement, paras 201-202.

214. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically aimed at assisting, encouraging, or lending moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.[1] Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”, and need not “serve as condition precedent for the commission of the crime.”[2]

216. The Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo substantially contributed to the Kabuye hill killings by encouraging Tutsis to seek refuge there and then providing reinforcements to those attempting to kill them. These acts alone suffice to constitute the actus reus of aiding and abetting. […]

[1] See, e.g., Karera Appeal Judgement, para. 321; Nahimana et al. Appeal Judgement, para. 482.

[2] Kalimanzira Appeal Judgement, para. 86; Rukundo Appeal Judgement, para. 52; Blagojević and Jokić Appeal Judgement, para. 134.

• Aiding and abetting |
• Mens rea

222. The Appeals Chamber recalls that the mens rea for aiding and abetting is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal perpetrator.[1] Specific intent crimes such as genocide do not require that the aider and abettor share the mens rea of the principal perpetrator; it suffices to prove that he knew of the principal perpetrator’s specific intent.[2]

227. In these circumstances, the Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo knew that, by instructing the refugees to move to Kabuye hill and subsequently bringing soldiers there, he was assisting the assailants in killing the refugees, and that he knew of their genocidal intent. Ntawukulilyayo correctly points out that the Trial Chamber found that he had good character and provided assistance to Tutsis before, during, and after the genocide.[3] Such evidence was indeed relevant to the assessment of Ntawukulilyayo’s mens rea and it might have been opportune for the Trial Chamber to have discussed such evidence in the relevant section of its legal findings. Nevertheless, the Appeals Chamber considers that, based on the totality of the evidence in this case, such evidence of Ntawukulilyayo’s good character and assistance to other Tutsis did not preclude a reasonable trier of fact from concluding that the only reasonable inference was that Ntawukulilyayo knew that the Tutsi refugees would not in fact be protected at Kabuye hill, but rather killed.[4]

[1] See, e.g., Kalimanzira Appeal Judgement, para. 86; Rukundo Appeal Judgement, para. 53; Nahimana et al. Appeal Judgement, para. 482.

[2] See Kalimanzira Appeal Judgement, para. 86; Rukundo Appeal Judgement, para. 53; Haradinaj et al. Appeal Judgement, para. 58; Blagojević and Jokić Appeal Judgement, para. 127.

[3] Trial Judgement, paras. 474, 475. See also infra, para. 240.

[4] In this respect, the Appeals Chamber notes, for example, the Trial Chamber’s reliance on Exhibit P30 as circumstantial corroboration of Ntawukulilyayo’s involvement in facilitating the attacks on Tutsis at Kabuye hill. See Trial Judgement, para. 293. The Trial Chamber accurately described Exhibit P30 as “a letter [dated 28 May 1994] confirming that [Ntawukulilyayo] visited the five communes [of Gisagara sub-prefecture] and addressed ‘the people’ concerning security as well as the need to assist the Rwandan army; he requested the assistance of soldiers to aid members of the population ‘in finding out whether there are no enemies amongst [] refugees’ that had gathered in Gisagara”. See ibid., fn. 412 (emphasis added). See also ibid., fn. 411 (emphasis added). Although this statement postdates the Kabuye hill killings, it offers circumstantial evidence of Ntawukulilyayo’s state of mind during the genocide and, in the Appeals Chamber’s view, goes against his suggestion that the Trial Chamber could also reasonably have found that his primary consideration in requesting military assistance was to protect incoming refugees.

• Aiding and abetting |
• Actus reus |
• Specific direction

104. Turning to the question of specific direction, the Appeals Chamber recalls that, in the Šainović et al. Appeal Judgement, which was issued subsequent to the Perišić Appeal Judgement, it clarified that specific direction is not an element of aiding and abetting liability.[1] In arriving at this conclusion, it carefully reviewed the jurisprudence of the Tribunal and the ICTR in this regard[2] and re-examined the elements of aiding and abetting liability under customary international law.[3] The Appeals Chamber then observed that, neither in the jurisprudence of the Tribunal and the ICTR nor under customary international law, had specific direction been considered to be an element of aiding and abetting liability.[4] As a result, it rejected the approach adopted in the Perišić Appeal Judgement, which required specific direction as an element of the actus reus of aiding and abetting,[5] and held that this approach was “in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law”.[6] The Appeals Chamber re-affirmed that, “under customary international law, the actus reus of aiding and abetting ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’” and that “[t]he required mens rea is ‘the knowledge that these acts assist the commission of the offense’.”[7]

105. Subsequently, in the Popović et al. Appeal Judgement, the Appeals Chamber re-affirmed that “‘specific direction’ is not an element of aiding and abetting liability under customary international law”.[8]

106. Accordingly, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, finds that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime. This also means that the Trial Chamber erred in law in making a finding on a substantial effect of the contributory acts contingent upon establishing specific direction, by holding that, when assessing whether the acts carried out by the aider and abettor have a substantial effect on the perpetration of a crime, the Trial Chamber must find that they are specifically directed to assist that crime.[9]

128. Finally, Judge Afanđe dissenting, if the new trial chamber were to examine the responsibility of Stanišić and Simatović for aiding and abetting the crimes, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, instructs it to apply the correct law on aiding and abetting liability as set out above, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[10] In this regard, the Appeals Chamber notes that the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law,[11] as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the Tribunal has to apply.[12] Accordingly, the Appeals Chamber dismisses Simatović’s argument in this respect.[13]

[1] Šainović et al. Appeal Judgement, para. 1649.

[2] Šainović et al. Appeal Judgement, paras 1623-1625, referring to Tadić Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 163, Gotovina and Markač Appeal Judgement, para. 127, Brđanin Appeal Judgement, para. 151, Krstić Appeal Judgement, para. 137, Čelebići Appeal Judgement, para. 352, Blaškić Appeal Judgement, paras 45-46 (quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249), Krnojelac Appeal Judgement, paras 33, 37, Kvočka et al. Appeal Judgement, paras 89-90, Blagojević and Jokić Appeal Judgement, paras 127, 186, 189, 191, 193-194, Simić Appeal Judgement, para. 85, Orić Appeal Judgement, para. 43, Vasiljević Appeal Judgement, paras 102, 134-135, Kupreškić et al. Appeal Judgement, paras 254, 283, Karera Appeal Judgement, para. 321, Nahimana et al. Appeal Judgement, paras 482, 672, Kalimanzira Appeal Judgement, para. 74, Ntawukulilyayo Appeal Judgement, paras 214, 216, Rukundo Appeal Judgement, para. 52, Muvunyi I Appeal Judgement, para. 79, Seromba Appeal Judgement, para. 139, Muhimana Appeal Judgement, para. 189, Ntagerura et al. Appeal Judgement, para. 370, Ntakirutimana Appeal Judgement, para. 530. See also Šainović et al. Appeal Judgement, paras 1619, 1650, referring to Mrkšić and [ljivančanin Appeal Judgement, para. 159, Lukić and Lukić Appeal Judgement, para. 424. See further Šainović et al. Appeal Judgement, para. 1622.

[3] Šainović et al. Appeal Judgement, paras 1626-1648. The Appeals Chamber examined the jurisprudence derived from cases which dealt with crimes committed during the Second World War and found that, in none of these relevant cases, was “specific direction” required as a distinct element. See Šainović et al. Appeal Judgement, paras 1627-1642. The Appeals Chamber also reviewed national law and held that requiring specific direction for aiding and abetting liability is not a general, uniform practice in national jurisdictions. See Šainović et al. Appeal Judgement, paras 1643-1646. Finally, the Appeals Chamber examined international instruments (the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996 and the ICC Statute) and found no support for the proposition that specific direction is an element of aiding and abetting liability under customary international law. See Šainović et al. Appeal Judgement, paras 1647-1648. See also Šainović et al. Appeal Judgement, para. 1622.

[4] Šainović et al. Appeal Judgement, paras 1623-1625, 1649.

[5] Perišić Appeal Judgement, para. 36.

[6] Šainović et al. Appeal Judgement, para. 1650.

[7] Šainović et al. Appeal Judgement, para. 1649, quoting Blaškić Appeal Judgement, para. 46, in turn quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. Accordingly, the Appeals Chamber confirmed that “the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability”. See Šainović et al. Appeal Judgement, para. 1650 (internal references omitted).

[8] Popović et al. Appeal Judgement, para. 1758, quoting [ainović et al. Appeal Judgement, para. 1649. See also Popović et al. Appeal Judgement, paras 1764, 1783.

[9] Trial Judgement, para. 1264. In this regard, the Appeals Chamber notes that the Trial Chamber took a slightly different approach from the Perišić Appeal Judgement, which considered substantial contribution by an aider and abettor to be a requirement independent from, and in addition to, specific direction, and stated that substantial contribution may be one of the factors for determining whether specific direction is established. See Perišić Appeal Judgement, paras 38-39. In the present case, the Prosecution asserts that, even accepting that specific direction constitutes an element of the actus reus of aiding and abetting, the Trial Chamber misapplied the legal test for aiding and abetting as set out in the Perišić Appeal Judgement, by making a finding of substantial contribution contingent upon establishing specific direction. See Prosecution Appeal Brief [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A, Prosecution Appeal Brief, 11 September 2013 (confidential; public redacted version filed on 25 September 2013)], para. 161. See also Prosecution Appeal Brief, paras 154-155. Given that the Appeals Chamber has found that specific direction is not an element of aiding and abetting liability, the Prosecution’s argument is moot to the extent that it concerns the Trial Chamber’s misapplication of the legal test as set out in the Perišić Appeal Judgement.

[10] See supra, paras 104-106.

[11] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81.

[12] See supra, paras 104-105.

[13] See supra, para. 119.

• Aiding and abetting |
• Tacit approval and encouragement

201. On the specific question of the passive presence of the Accused at the crime sites,[1] the Trial Chamber held that:

“[…] an approving spectator who is held in such respect by the other perpetrators that his presence encourages them in their conduct, may be guilty of complicity in a crime against humanity”.[2]

Thus, the Trial Chamber found that a person’s role in the commission of the proscribed act need not be tangible.[3] Even where the presence of the Accused need not be a condition sine qua non, he may still incur individual responsibility provided he is aware of the possible effect of his presence (albeit passive) on the commission of the crime. In the case at bar, the Trial Chamber held that the Accused’s failure to oppose the killing constituted a form of tacit encouragement in light of his position of authority.[4] The Trial Chamber therefore found, based on the evidence presented by the parties, that the participation of the Accused, through encouragement and support afforded to the principals of the crimes committed at the various massacre sites, had been established beyond reasonable doubt.[5]

202. The Appeals Chamber is satisfied that the Trial Chamber did not err in law or in fact in finding that the Accused did possess the criminal intent, and that consequently his presence, albeit passive, considering his position of authority, was tantamount to tacit encouragement.

[1] Aleksovski Appeal Judgement, para. 162, citing Furundžija Trial Judgement, para. 249, which sets forth two requirements for aiding and abetting: “(i) It must be demonstrated that the accomplice committed acts intended to specifically aid, abet or give moral support to the principal perpetrator for the commission of the specific offence, and that such support had a substantial effect on the commission of the offence; and (ii) It must be shown that the accomplice knew that his acts furthered the commission of the specific offence by the principal”.

[2] Trial Judgement, para. 200, citing Furundžija Trial Judgement , para. 207. The Furundžija case established inter alia that “assistance must have a substantial effect on the perpetration of the crime” (para. 234).

[3] See also Furundžija Trial Judgement, para. 232, where it was held that the assistance given by an accomplice need not be tangible and can consist of moral support in certain circumstances. While any spectator can be said to be encouraging a spectacle - an audience being a necessary element of a spectacle - the spectator in these cases was only found to be complicit if his status was such that his presence had a significant legitimizing or encouraging effect on the principals” (emphasis added)

[4] Trial Judgement, para. 202.

[5] Ibid., paras. 352, 404 and 468.

• Direct and public incitement to commit genocide |
• Aiding and abetting

3345. As an inchoate crime,[1] direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time,[2] and is punishable even if no act of genocide has resulted therefrom.[3] Accordingly, in order for Kanyabashi to be found responsible for aiding and abetting direct and public incitement to commit genocide, it would have to be established that he substantially contributed to Kambanda’s and Sindikubwabo’s inciting speeches themselves and not, as the Prosecution suggests, to the effects of their incitements by “reiterat[ing] and reinforc[ing] their message”.[4] The Appeals Chamber recalls that the Trial Chamber determined that Kanyabashi spoke after Kambanda and Sindikubabwo delivered their speeches.[5] The Prosecution points to no evidence or findings demonstrating that Kanyabashi’s conduct provided substantial assistance to Sindikubwabo or Kambanda in the commission of their direct and public incitement to commit genocide, either before, during, or after their respective speeches.

[1] Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678.

[2] Nahimana et al. Appeal Judgement, para. 723.

[3] Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678.

[4] See Prosecution Appeal Brief, para. 35.

[5] Trial Judgement, para. 910. See also ibid., paras. 5752, 5992. The Appeals Chamber observes that, as part of his supplementary grounds of appeal, Kanyabashi challenges the Trial Chamber’s finding that he spoke after Kambanda and Sindikubwabo. See Kanyabashi Response Brief, paras. 29-52. The Appeals Chamber finds it unnecessary to discuss the issue in light of its conclusion on the merits of the Prosecution’s appeal.

Not an official document of the ICTR, ICTY, or IRMCT.