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

430. In holding that the crime of genocide does not require the existence of a State policy, the Trial Chamber relied on, inter alia, the Krstić, Jelisić, and Kayishema and Ruzindana Appeal Judgements.[1] […] In the Jelisić Appeal Judgement, the Appeals Chamber held that “the existence of a plan or policy is not a legal ingredient of the crime”,[2] while in Kayishema and Ruzindana the ICTR Appeals Chamber stated that “a genocidal plan is not a constituent element of the crime of genocide”.[3] Although these judgements do not explicitly address the issue of State policy, the Appeals Chamber considers that if a policy is not a legal requirement, it follows that State policy cannot be a legal requirement. Thus, the question of whether the existence of a State policy is required for the crime of genocide has already been considered by the Tribunal.

1615. The Appeals Chamber recalls that it has previously held that the participation of an accused in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] Moreover, it has previously held that “the fact that [the] participation [of an accused] amounted to no more than his or her ‘routine duties’ will not exculpate the accused”.[2] […]

The Trial Chamber found that the Appellant was liable under JCE III for murder as a crime against humanity. At the same time, the Trial Chamber, without providing any further reasons, held that “in the circumstances of [the] killings arising from a JCE to Forcibly Remove – encompassing forcible transfer as other inhumane acts constituting a crime against humanity – his criminal responsibility is for murder as a crime against humanity and not as a war crime”. See para. 1710. The Appeals Chamber considered that the Trial Chamber’s scant reasoning as to why it acquitted the Appellant for war crimes suggests that the Trial Chamber required that the category of the JCE III crime must match that of the JCE I crime. See para. 1713.

1713. […] [T]he jurisprudence of the Tribunal does not require the category of the JCE I crime and the JCE III crime to match.[1] […]

762. To establish the actus reus of persecution in the present case, the Trial Chamber was required to establish that the underlying acts of terrorising civilians: discriminated in fact, denied or infringed upon a fundamental right laid down in international customary or treaty law,[1] and were “of equal gravity to the crimes listed in Article 5 whether considered in isolation or in conjunction with other acts.”[2] […]

766. […] The Appeals Chamber reiterates that “it is not necessary that every individual act underlying the crime of persecution […] be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together”.[1] […]

738. The Appeals Chamber reiterates that persecution as a crime against humanity does not require that the underlying acts are crimes under international law.[1] A trial chamber does not need to establish the elements of the underlying acts, including the mens rea, even when the underlying act also constitutes a crime under international law. With respect to the mens rea, all that is required is establishing that the underlying act was deliberately carried out with discriminatory intent. […]

2053. […] [T]he existence of mitigating circumstances does not automatically result in a reduction of sentence or preclude the imposition of a sentence of life imprisonment where the gravity of the offence so requires.[1] […]

1857. […] Effective control has been defined to mean the material ability to prevent offences or punish the offender.[1] The concept of material ability necessarily takes into account all factors which might impede a superior’s ability to prevent and punish.[2] In circumstances where a superior would not be able to perform the functions necessary to prevent or punish, the superior could not be said to possess the material ability required to exercise effective control.

1860. […] [T]he Appeals Chamber recalls that there is no definitive list of indicators of effective control. Indicators considered will necessarily depend on the case and are a matter of evidence showing that the accused had the power to prevent or punish the alleged perpetrators where appropriate.[3]

1928. With regard to what constitutes reasonable measures, the Appeals Chamber agrees that the obligation to take measures is restricted to those that are feasible, so that no responsibility attaches to a superior for whom the fulfilment of the duty to punish was not possible in the prevailing circumstances.[1] It is well-established in the case law of the Tribunal that the determination of what is materially possible in terms of fulfilling the duty to punish is primarily linked to the question of a superior’s effective control.[2] […]

1929. […] While the Appeals Chamber agrees that feasibility relates to what is realistic and practical in the circumstances,[3] it considers that when used in the context of command responsibility, the assessment must remain anchored in the material powers of the superior. […] The Appeals Chamber recalls its finding in the Hadžihasanović and Kubura case that a superior’s responsibility should not turn on the competent authority’s possible failure to initiate criminal proceedings.[4] If the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, this entails that such a report would not be sufficient to fulfil the obligation to punish offending subordinates.[5] It does not mean that the action of reporting becomes impossible in the circumstances.

1931. The Appeals Chamber is mindful of the complex situation facing commanders during armed conflict when their subordinates have committed crimes upon the orders of the top echelons of the military and political structures. However, international law requires commanders to take some action to punish their subordinates for committing crimes, even in these circumstances.[6] […]