[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.