Recognized mode of liability

Notion(s) Filing Case
Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

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

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

[1] Blaškić Appeal Judgement, para. 663.

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

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

[4] Trial Judgement, paras 553, 662.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

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

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

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

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

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

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