Accused's presence at crime scenes

Notion(s)	Filing	Case
Instigating \| Actus reus \| Accused's presence at crime scenes \| Planning \| Ordering	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. […] show footnotes [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. Download full document		ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s)	Filing	Case
Commission \| Accused's presence at crime scenes \| Fully exercised influence	Appeal Judgement - 29.09.2014	NZABONIMANA Callixte (ICTR-98-44D-A)
477. As correctly recalled by the Trial Chamber, acts other than physical perpetration can constitute direct participation in the actus reus of a crime.[1] The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled”.[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the scene of the crime and participated, supervised, directed, played a leading role, or otherwise fully exercised influence over the perpetrators.[3] However, in this case, the Trial Chamber did not find that Nzabonimana was present during the attack and, further, did not find that he supervised, played a leading role, or fully exercised influence over the perpetrators. 478. Consequently, the Prosecution has failed to demonstrate that the Trial Chamber erred in not concluding that Nzabonimana committed genocide and extermination, or alternatively murder, as a crime against humanity at the Nyabikenke commune office. show footnotes [1] [Nzabonimana] Trial Judgement, para. 1696. See Munyakazi Appeal Judgement, para. 135; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60. [2] Gacumbitsi Appeal Judgement, para. 60. See also Munyakazi Appeal Judgement, para. 135; Seromba Appeal Judgement, para. 161. [3] See Seromba Trial Judgement, paras. 239, 269; Seromba Appeal Judgement, para. 171; Gacumbitsi Appeal Judgement, para. 60. See also Munyakazi Appeal Judgement, para. 136. Download full document		ICTR Statute Article 6(1) ICTY Statute Article 7(1)