Ordering

Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

240. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence.[1] A person in a position of authority may incur responsibility for ordering if the order has a direct and substantial effect on the commission of the illegal act.[2] No formal superior-subordinate relationship between the accused and the perpetrator is required.[3] The authority envisaged by ordering under Article 6(1) of the Statute may be informal or of a purely temporary nature.[4] It is sufficient that there is proof of a position of authority on the part of the accused that would compel another person to commit a crime.[5] Whether such authority exists is a question of fact.[6]

[1] See, e.g., Kalimanzira Appeal Judgement, para. 213; Semanza Appeal Judgement, paras. 361, 363.

[2] See Renzaho Appeal Judgement, para. 315; Nahimana et al. Appeal Judgement, paras. 481, 492; Gacumbitsi Appeal Judgement, para. 185; Kamuhanda Appeal Judgement, para. 75; Kayishema and Ruzindana Appeal Judgement, para. 185.

[3] Nahimana et al. Appeal Judgement, fn. 1162; Semanza Appeal Judgement, para. 361; Kordić and Čerkez Appeal Judgement, para. 28; Boškoski and Tarčulovski Appeal Judgement, para. 164.

[4] Semanza Appeal Judgement, para. 363.

[5] Semanza Appeal Judgement, para. 361; Boškoski and Tarčulovski Appeal Judgement, para. 164.

[6] Semanza Appeal Judgement, para. 363.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

320. The Appeals Chamber further notes that the conclusion that Renzaho gave an order to kill at roadblocks is, standing alone, an insufficient basis to find that Renzaho is criminally responsible under Article 6(1) of the Statute for ordering any such killings. In the present case, the Trial Chamber made no findings concerning when or where Renzaho gave the order,[1] to whom or to what category of perpetrators he gave the order,[2] and whether Renzaho was in a position of authority vis-à-vis the recipient.[3] The Appeals Chamber recalls that a Trial Chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[4] Taken together, the paucity of findings in relation to the conclusion that Renzaho ordered killings at roadblocks convinces the Appeals Chamber, Judge Pocar dissenting, that the Trial Chamber erred in failing to provide a reasoned opinion. 

[1] Cf. D. Milošević Appeal Judgement, para. 267.

[2] Cf. Boškoski and Tarčulovski Appeal Judgement, para. 75.

[3] See Kamuhanda Appeal Judgement, para. 75.

[4] Kajelijeli Appeal Judgement, para. 60; Kordić and Čerkez Appeal Judgement, para. 383.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

481. With respect to ordering, a person in a position of authority[1] may incur responsibility for ordering another person to commit an offence,[2] if the person who received the order actually proceeds to commit the offence subsequently. Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.[3]

[1] It is not necessary to demonstrate the existence of an official relationship of subordination between the accused and the perpetrator of the crime: Galić Appeal Judgement, para. 176; Gacumbitsi Appeal Judgement, para. 182; Kamuhanda Appeal Judgement, para. 75; Semanza Appeal Judgement, para. 361; Kordić and Čerkez Appeal Judgement, para. 28.

[2] Galić Appeal Judgement, para. 176; Ntagerura et al. Appeal Judgement, para. 365; Kordić and Čerkez Appeal Judgement, paras. 28-29.

[3] Galić Appeal Judgement, paras. 152 and 157; Kordić and Čerkez Appeal Judgement, para. 30; Blaškić Appeal Judgement, para. 42.

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

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

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

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

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

[1] Trial Judgement, para. 382.

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

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

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

277. The Appeals Chamber recalls that ordering under Article 6(1) of the Statute requires that a person in a position of authority instruct another person to commit an offence.[1] As previously held, “the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of ‘instructing’, pivotal to the understanding of the question of ‘ordering’, requires ‘a positive action by the person in a position of authority’”.[2]

283. The Appeals Chamber considers that, in the absence of any evidence that Nsengiyumva gave any instructions,[3] the mere involvement of three soldiers in civilian attire under his command[4] and the existence of a pattern of crimes being committed in and around his area of control immediately after the death of the President could not lead a reasonable trier of fact to find that the only reasonable inference was that Nsengiyumva ordered the killings perpetrated in Gisenyi town on 7 April 1994.

323. The Appeals Chamber finds that in the absence of evidence of military involvement and coordination between the military and the civilian attackers, the mere fact that the killing took place in Gisenyi town the day following President Habyarimana’s death is insufficient for a reasonable trier of fact to find that the only reasonable inference was that the unidentified civilian assailants acted upon Nsengiyumva’s orders. […]

571. Turning to the Trial Chamber’s finding that Bagosora ordered the killing of Maharangari, the Appeals Chamber observes that the Trial Chamber’s factual findings do not support its legal conclusion. In its factual findings, the Trial Chamber concluded that:

Bagosora had authority over the Rwandan army at the time of the attack […]. There is no credible evidence directly showing that Bagosora was aware of the murder of Maharangari. However, given the widespread killing throughout Kigali perpetrated by or with the assistance of military personnel, including the targeted killings on the morning of 7 April […], the Chamber is satisfied that Bagosora was aware that personnel under his authority were participating in killings.[5]

While the Trial Chamber discussed Bagosora’s awareness of the killing of Maharangari and Bagosora’s superior position, at no point did it discuss evidence that Bagosora ordered the crimes. The Trial Chamber’s factual findings therefore appear to correspond only to those which would normally be entered in relation to superior responsibility.

[1] See, e.g., Setako Appeal Judgement, para. 240; Kalimanzira Appeal Judgement, para. 213; Milošević Appeal Judgement, para. 290; Nahimana et al. Appeal Judgement, para. 481. The Appeals Chamber recalls that responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order. See Renzaho Appeal Judgement, para. 315; Nahimana et al. Appeal Judgement, para. 481. See also Boškoski and Tarčulovski Appeal Judgement, para. 68.

[2] Milošević Appeal Judgement, para. 267, citing Galić Appeal Judgement, para. 176. See also Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182.

[3] With respect to the Prosecution’s reliance on Witness ZF’s testimony that Nsengiyumva ordered Lieutenant Bizumuremyi to begin operations to kill Tutsis, the Appeals Chamber notes that the Trial Chamber merely accepted that Witness ZF was present at the Gisenyi military camp for various periods from 6 to 7 April 1994 and declined to rely on Witness ZF’s further testimony in the absence of corroboration. While the Trial Chamber did not explicitly articulate that it refused to rely on the witness’s account on Nsengiyumva’s alleged order to Bizumuremyi, its discussion of the witness’s credibility and its general “questions about the credibility of Witness ZF’s uncorroborated account” clearly suggest that the Trial Chamber also refused to rely on Witness ZF’s testimony on Nsengiyumva’s alleged order to Bizumuremyi along with his testimony concerning Nsengiyumva’s alleged meeting with Interahamwe or conversations with Bagosora on that matter. This is reflected in the Trial Chamber’s factual and legal findings on Nsengiyumva’s responsibility, which do not refer to Nsengiyumva’s alleged order to Bizumuremyi. See Trial Judgement, paras. 1051-1054, 1065, 2142.

[4] Witness DO specifically implicated three soldiers in civilian attire in the killings of 7 April 1994. See Witness DO, T. 30 June 2003 pp. 26, 32, 62, T. 1 July 2003 p. 48, and T. 2 July 2003 pp. 36, 37, 39, 54. See also Trial Judgement, para. 1016. As regards Nsengiyumva’s authority over these soldiers, the Appeals Chamber refers to its discussion infra, paras. 292-294, 297.

[5] Trial Judgement, para. 962.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

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

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

32. […] The issue which the Appeals Chamber will address is whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, and if so, how it should be defined.

41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chamber’s above articulations of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chamber’s standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.

42. The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[1]

See also para. 345 et seq.

[1] The French translation of this legal standard reads as follows:

Quiconque ordonne un acte ou une omission en ayant conscience de la réelle probabilité qu’un crime soit commis au cours de l’exécution de cet ordre possède la mens rea requise pour établir la responsabilité aux termes de l’article 7 alinéa 1 pour avoir ordonné. Le fait d’ordonner avec une telle conscience doit être considéré comme l’acceptation dudit crime.

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

160. The Appeals Chamber recalls that the actus reus of ordering requires that a person in a position of authority instruct another person to commit an offence.[1] There is no requirement that the order be given in any particular form, and the existence of the order may be proven through circumstantial evidence.[2] Furthermore, it is sufficient to demonstrate that the order substantially contributed to the physical perpetrator’s criminal conduct.[3]

[1] Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, para. 28; Nahimana et al. Appeal Judgement, para. 481; Semanza Appeal Judgement, para. 361. See also Trial Judgement, para. 400.

[2] Trial Judgement, para. 400 (citing, in particular, Kamuhanda Appeal Judgement, para. 76; Galić Appeal Judgement, paras 170-171; Limaj et al. Trial Judgement, para. 515; Blaškić Trial Judgement, para. 281).

[3] Nahimana et al. Appeal Judgement, para. 492; Strugar Trial Judgement, para. 332. See also Aleksovski Trial Judgement, para. 61; Tadić Trial Judgement, paras 673-674.  

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

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

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

[2] Semanza Appeal Judgement, para. 361.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

75. The Appeals Chamber notes that the Trial Chamber was unable to identify the direct perpetrators of the alleged murders or other crimes by name, but with respect to the crimes for which Tarčulovski was convicted the Trial Chamber did find that the direct perpetrators were members of the police who entered Ljuboten on the morning of 12 August 2001[1] and that Tarčulovski directed the actions of the police in the village that day.[2] These findings were sufficiently specific to identify the direct perpetrators as persons being directed by Tarčulovski for the purposes of establishing his criminal liability.[3] Tarčulovski’s arguments in this respect are rejected.

See also para. 89.

[1] Trial Judgement, paras 42, 58, 60-61, 66, 312-313, 316, 319, 325, 328, 380, 383, 385, 552, 555, 560 and 564.

[2] Trial Judgement, paras 555, 560, 564 and 574.

[3] See also for: Planning: Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Kordić and Čerkez Appeal Judgement, paras 27, 29 and 32; Karera Appeal Judgement, paras 317-318; Nahimana et al. Appeal Judgement, para. 480. See also, e.g., Gacumbitsi Appeal Judgement, 99 and 105-108, affirming the Trial Chamber’s finding that Gacumbitsi is responsible for instigating, referring to, in particular, Trial Judgement, paras 213, 215 and 328, where physical perpetrators are described as a “group of attackers on which the bourgmestre had influence”, and “young men who, being in the neighbourhood, heard the bourgmestre’s instigation”. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Karera Appeal Judgement, para. 211; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361. See also, e.g., Blaškić Appeal Judgement, paras 588 (fn. 1195) and 597, finding Blaškić responsible for ordering, and confirming the Trial Chamber’s findings, in particular paras 688, 693, 699 and 735, in which physical perpetrators are referred to as the “HVO” or “HVO soldiers” and the “Military Police”; Gacumbitsi Appeal Judgement, paras 184-187, finding Gacumbitsi responsible for ordering, and referring to, in particular, Trial Judgement, paras 98, 152, 154, 163, 168 and 171-173, where physical perpetrators are referred to as “conseillers”, the “communal police”, “gendarmes”, and the “Interahamwe”; Semanza Appeal Judgement, para. 363, finding Semanza responsible for ordering, and confirming the Trial Chamber’s findings, in particular in paras 178 and 196, where physical perpetrators are described as “soldiers”, “gendarmes”, and the “Interahamwe”. Cf. for superior responsibility: Orić Appeal Judgement, para. 35; Blagojević and Jokić Appeal Judgement, para. 287; Blaškić Appeal Judgement, para. 216, with reference to Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras 38 and 40. As regards joint criminal enterprise: Krajišnik Appeal Judgement, paras 156-157.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

66. The Appeals Chamber recalls its holding that:

The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.[1]

It is well-established in the Tribunal’s jurisprudence that the elements of a Common Article 3 crime encompass the requirement that the victim did not take an active part in the hostilities at the time when the crime was committed.[2] Therefore, the Appeals Chamber is satisfied that the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.[3]

67. In the present case, the Trial Chamber did not make explicit findings on the mens rea of the direct perpetrators in relation to the status of the victims of the Common Article 3 crimes of murder and cruel treatment.[4] However, when read as a whole,[5] the Trial Judgement shows that the Trial Chamber examined whether the direct perpetrators knew or should have been aware of the status of the victims in relation to each crime, as demonstrated by its findings on the factual circumstances in which the crimes were committed.[6] […]

67. […] In these circumstances, where the direct perpetrators’ knowledge of the status of the victims was part of the Trial Chamber’s factual findings, the Appeals Chamber need not consider whether such findings are necessary for a conviction for planning, instigating and ordering. Tarčulovski’s argument in this regard is dismissed. Under the third and fourth grounds of appeal, the Appeals Chamber will consider further whether the totality of the Trial Chamber’s factual findings in relation to the status of the victims are reasonable.[1]

68. With respect to Tarčulovski’s mens rea, the Appeals Chamber recalls that he was convicted of planning, instigating and ordering crimes including those under Common Article 3. Hence, Tarčulovski was required to have the direct intent or the awareness of the substantial likelihood that the crimes would be committed in the execution of his plan, instigation and order.[2] Indeed the Trial Chamber found that Tarčulovski was responsible for planning, instigating and ordering the “deliberate but indiscriminate attack against the residents of Ljuboten of Albanian ethnicity”.[3] Given the indiscriminate nature of the attack, the Appeals Chamber is satisfied that the Trial Chamber reasonably concluded that Tarčulovski possessed the requisite mens rea for these modes of liability.[4] His argument in this regard is dismissed.

[1] See infra paras 86, 95, 102 and 119.

[2] See Kordić and Čerkez Appeal Judgement, paras 29-32, and infra paras 132 and 174.

[3] Trial Judgement, para. 573. See also ibid., para. 574; infra paras 135, 153-154, 157 and 161.

[4] Trial Judgement, para. 576. See also the Appeals Chamber’s findings relevant to this matter in infra paras 132, 135, 150 and 174. Cf. Milošević Appeal Judgement, para. 273.

[1] Naletilić and Martinović Appeal Judgement, para. 114; see also ibid., para. 118. 

[2] Strugar Appeal Judgement, para. 172; Čelebići Appeal Judgement, paras 420 and 423-424.

[3] See Naletilić and Martinović Appeal Judgement, paras 118-121, analysing, in light of the principle of individual guilt, the mens rea requirement in relation to the international or internal nature of an armed conflict and arriving at the same conclusion. Concerning the mens rea of the crime of attacks against civilians, the Appeals Chamber held that it must be proven that the perpetrator was aware or should have been aware of the civilian status of the persons attacked (Strugar Appeal Judgement, para. 271, citing Galić Trial Judgement, para. 55). See Haradinaj et al. Trial Judgement, para. 62; Milutinović et al. Trial Judgement, para. 134; Delić Trial Judgement, para. 44; Martić Trial Judgement, para. 47; Krajišnik Trial Judgement, para. 847; Halilović Trial Judgement, para. 36. Cf. Elements of Crimes, Article 8(2)(c)(i)-1 and 8(2)(c)(i)-3 of the ICC Statute.

[4] Trial Judgement [Prosecutor v. Ljube Boškoski and Johan Tačulovski, Case No. IT-04-82-T, Judgement, 10 July 2008], paras 301-303. The Appeals Chamber notes that the Trial Chamber made explicit findings on all the other aspects of the mens rea of the direct perpetrators in relation to crimes of murder, wanton destruction and cruel treatment (Trial Judgement, paras 312, 320, 328, 330-332, 380, 385 and 387-388). In the Tarčulovski Reply Brief, Tarčulovski appears to contest these findings, in particular due to the lack of specific identification of the direct perpetrators (Tarčulovski Reply Brief, paras 53 (murder), 75 (wanton destruction) and 78 (cruel treatment); see also Tarčulovski Appeal Brief, para. 166). The Appeals Chamber finds that the Trial Chamber reasonably made these findings in light of the evidence taken as a whole. As regards the identification of the direct perpetrators, see infra paras 73-75 and 89.

[5] See Orić Appeal Judgement, para. 38; Naletilić and Martinović Appeal Judgement, para. 435; Stakić Appeal Judgement, para. 344.

[6] See, e.g., Trial Judgement, paras 303, 310-312, 314-320, 323-328, 344-345, 383, 385 and 387-388. 

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ICTY Statute Article 3;
Article 3(b)
Other instruments Geneva Convention: common Article 3.
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

[1] Trial Judgement, paras 829, 834.

[2] See Trial Judgement, para. 386.

[3] See Trial Judgement, para. 387.

[4] Cf. Trial Judgement, para. 387.

[5] Trial Judgement, para. 388.

[6] Trial Judgement, para. 388.

[7] Blaškić Appeal Judgement, para. 42.

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

265. The Trial Chamber has adopted a very general approach in that it did not analyse whether Milošević ordered every sniping or shelling incident, but rather concluded that those incidents could only take place if ordered by him in the framework of the campaign directed against the civilian population of Sarajevo. In principle, this approach is not erroneous as such, given that both the actus reus and the mens rea of ordering can be established through inferences from circumstantial evidence, provided that those inferences are the only reasonable ones. The Appeals Chamber underlines, however, that when applying such an approach to the facts of the case, great caution is required.

266. First, the Appeals Chamber emphasizes that, as the Trial Chamber correctly held in its discussion of the widespread or systematic attack, “[a] campaign is a military strategy; it is not an ingredient of any of the charges in the Indictment, be that terror, murder or inhumane acts”.[1] The Appeals Chamber notes, however, that in other parts of the Trial Judgement, the Trial Chamber appears to hold Milošević responsible for planning and ordering a campaign of crimes.[2] The Appeals Chamber understands these references as illustrating that the crimes at stake formed a pattern comprised by the SRK military campaign in Sarajevo. Therefore, the “campaign” in the present Appeal Judgement shall be understood as a descriptive term illustrating that the attacks against the civilian population in Sarajevo, in the form of sniping and shelling, were carried out as a pattern forming part of the military strategy in place.

Having clarified that Milošević could not be held criminally responsible for planning or ordering a military campaign (but rather for the crimes resulting therefrom), the Appeals Chamber further concluded that there was no evidence of him planning or ordering the campaign as such. Therefore, there was no basis for a conclusion that he planned and ordered the crimes on the ground that they resulted from a military campaign. Consequently, the Appeals Chamber proceeded to analyse whether there was evidence supporting the Trial Chamber’s conclusions that Milošević planned and ordered the crimes resulting from the specific shelling and sniping incidents. The Appeals Chamber further underlined:

271. The Appeals Chamber emphasizes that its findings above pertain strictly to Milošević’s individual criminal responsibility for ordering and planning the campaign of shelling and sniping of civilians in Sarajevo as such, given that not all the legal requirements necessary for these modes of liability have been established at trial. These findings do not affect the conclusions of the Trial Chamber or those of the Galić Trial and Appeal Chambers that such a campaign took place in Sarajevo during the relevant period.

[1] Trial Judgement, para. 927.

[2] Trial Judgement, paras 910-913, 927-928, 932, 938, 953, 966, 975, 978. 

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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

267. […] The Appeals Chamber recalls that the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of “instructing”, pivotal to the understanding of the question of “ordering”, requires “a positive action by the person in a position of authority”.[1] The Appeals Chamber accepts that an order does not necessarily need to be explicit in relation to the consequences it will have.[2] […]

290. The Appeals Chamber recalls that ordering requires that a person in a position of de jure or de facto authority instructs another person to commit a crime.[3] It does not, however, require the physical presence of the perpetrator at the site of the crime.

[1] Galić Appeal Judgement, para. 176. See also, Nahimana et al. Appeal Judgement, para. 481, referring to Gacumbitsi Appeal Judgement, para. 182; Kamuhanda Appeal Judgement, para. 75; Semanza Appeal Judgement, para. 361; Ntagerura et al. Appeal Judgement, para. 365; Kordić and Čerkez Appeal Judgement, paras 28-30.

[2] Cf. Nahimana et al. Appeal Judgement, para. 481: “Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.” See also, Galić Appeal Judgement, paras 152 and 157; Kordić and Čerkez Appeal Judgement, para. 30; Blaškić Appeal Judgement, para. 42.

[3] Trial Judgement, para. 957. See Kordić and Čerkez Appeal Judgement, para. 28.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

213. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence. It is clear that the Trial Chamber found that Kalimanzira was in a position of authority.[2] The Trial Chamber, however, made no findings that he instructed anyone at Kabuye hill to commit a crime. Instead, it follows from the Trial Judgment that Kalimanzira’s role during his time at Kabuye hill involved “providing armed reinforcements.”[3] While it is possible that an order to attack could have been inferred from the surrounding circumstances, the Appeals Chamber is not satisfied that the Prosecution has demonstrated that this is the only reasonable inference from the evidence.

[1] Semanza Appeal Judgement, paras. 361, 363.

[2] Trial Judgement, paras. 97-99.

[3] Trial Judgement, para. 393.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber clarified several points with regard to the mode of responsibility of ordering pursuant to Article 7(1) of the Statute:

176. The Appeals Chamber recalls that the actus reus of ordering has been defined as a person in a position of authority instructing another person to commit an offence; a formal superior-subordinate relationship between the accused and the actual physical perpetrator not being required.[1] The Appeals Chamber finds that the very notion of “instructing” requires a positive action by the person in a position of authority.[2] The failure to act of a person in a position of authority, who is in a superior-subordinate relationship with the physical perpetrator, may give rise to another mode of responsibility under Article 7(1) of the Statute or superior responsibility under Article 7(3) of the Statute.[3] However, the Appeals Chamber cannot conceive of a situation in which an order would be given by an omission, in the absence of a prior positive act.[4] The Appeals Chamber concludes that the omission of an act cannot equate to the mode of liability of ordering under Article 7(1) of the Statute.[5]

177. In the present case, the Appeals Chamber notes that Galić conflates two separate issues: (1) whether an omission can constitute an act of ordering; and (2) whether an act of ordering can be proven by taking into account omissions. The Trial Chamber here employed the latter approach, which does not constitute a legal error. It did not find Galić guilty for having ordered the crimes by his failure to act or culpable omissions. That is, it did not infer from the evidence the fact that he omitted an act and that this omission constituted an order. Rather, where the Trial Chamber mentions failures to act, it took those failures into account as circumstantial evidence to prove the mode of liability of ordering. The Trial Chamber inferred from the evidence adduced at trial, which included, inter alia, acts and omissions of the accused, that Galić had given the order to commit the crimes.[6]

178. The Appeals Chamber thus concludes that the mode of liability of ordering can be proven, like any other mode of liability, by circumstantial or direct evidence, taking into account evidence of acts or omissions of the accused. The Trial Chamber must be convinced beyond reasonable doubt from the evidence adduced at trial that the accused ordered the crime.[7] Whether or not the Trial Chamber could have inferred from the evidence adduced at trial that Galić had ordered the crimes is a question of fact and will be addressed as part of his eighteenth ground of appeal.

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

[2] See Blaškić Appeal Judgement, para. 660.

[3] When, for example, a person is under a duty to give an order but fails to do so, individual criminal responsibility may incur pursuant to Article 7(1) or Article 7(3) of the Statute.

[4] The Appeals Chamber, however, notes that this has to be distinguished from the fact that a superior may be criminally liable if he orders an omission. The Appeals Chamber has held that a “person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order” has the requisite mens rea for ordering. Blaškić Appeal Judgement, para. 42; Kordić and Čerkez Appeal Judgement, para. 30.

[5] It would thus be erroneous to speak of “ordering by omission”.

[6] Trial Judgement, para. 749: “General Galić is guilty of having ordered the crimes proved at trial.”

[7] Stakić Appeal Judgement, para. 219.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

125. The Appeals Chamber finds that it is not required to prove Tarčulovski’s presence at the crime scenes to hold him criminally responsible, provided the Trial Chamber was satisfied that the crimes were committed by police acting under Tarčulovski’s direction or according to his plan.[1]

[…].

132. The Appeals Chamber recalls that the accused’s presence at the crime scene is not a requisite element of planning, instigating and ordering,[2] although it can be one of the factors to be considered in determining the mens rea of the planner, instigator or orderer. […]

[1] The Trial Chamber found that Tarčulovski was not criminally responsible for the murder of Atulla Quaili because the perpetrators of the murder were not acting under his authority or direction, and not because he was away from the site where Atulla Quaili was killed (Trial Judgement, para. 575). Furthermore, the presence of an instigator, orderer or planner at the crime scene is not required for the proof of planning, instigating or ordering criminal conduct (Milošević Appeal Judgement, para. 290, regarding ordering. Cf. Aleksovski Trial Judgement, para. 62; Tadić Trial Judgement, paras 679 and 687). The Appeals Chamber also recalls that in the jurisprudence of the Tribunal and the ICTR, the accused’s presence was never mentioned as an element of planning, instigating and ordering (e.g., Planning: Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Kordić and Čerkez Appeal Judgement, paras 27, 29 and 32. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361).

[2] See supra para. 125. See also for the mens rea of planning: Martić Appeal Judgement, fn. 553; Kordić and Čerkez Appeal Judgement, paras 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Martić Appeal Judgement, fn. 553; Kordić and Čerkez Appeal Judgement, paras 29 and 32; Nahimana et al. Appeal Judgement, para. 480. Ordering: Martić Appeal Judgement, paras 221-222; Blaškić Appeal Judgement, para. 42; Kordić and Čerkez Appeal Judgement, paras 29-30; Nahimana et al. Appeal Judgement, para. 481.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1099.            […] The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged.[1] The Appeals Chamber considers that when the Prosecution intends to prove that an accused ordered particular crimes, it must identify in the indictment, at least by category, to whom the accused is alleged to have given orders[2] and all detail it possesses regarding the location of the incidents.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 150; Ntagerura et al. Appeal Judgement, para. 23; Kupreškić et al. Appeal Judgement, para. 89.

[2] Cf. Uwinkindi Appeal Decision [Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011], para. 36 (“When the Prosecution pleads a case of ‘instigation’, it must precisely describe the instigating acts and the instigated persons or groups of persons”), referring to Blaškić Appeal Judgement, para. 226. See also Ndindiliyimana et al. Appeal Judgement, para. 174.

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