Elements
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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894. Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been defined as “an agreement between two or more persons to commit the crime of genocide”.[1] The existence of such an agreement between individuals to commit genocide (or “concerted agreement to act”[2]) is its material element (actus reus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea).[3] [1] Ntagerura et al. Appeal Judgement, para. 92. See also Kajelijeli Trial Judgement, para. 787; Niyitegeka Trial Judgement, para. 423; Ntakirutimana Trial Judgement, para. 798; Musema Trial Judgement, para. 191. [2] The jurisprudence of the Tribunal refers to an “agreement” and to a “concerted agreement to act”, in which a number of individuals join (Ntagerura et al. Appeal Judgement, para. 92; Kajelijeli Trial Judgement, paras. 787‑788; Niyitegeka Trial Judgement, para. 423; Musema Trial Judgement, para. 191). [3] Niyitegeka Trial Judgement, para. 423; Musema Trial Judgement, para. 192. |
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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677. A person may be found guilty of the crime specified in Article 2(3)(c) of the Statute if he or she directly and publicly incited the commission of genocide (the material element or actus reus) and had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea). Such intent in itself presupposes a genocidal intent.[1] 678. The Appeals Chamber considers that a distinction must be made between instigation[2] under Article 6(1) of the Statute and public and direct incitement to commit genocide under Article 2(3)(c) of the Statute. In the first place, instigation under Article 6(1) of the Statute is a mode of responsibility; an accused will incur criminal responsibility only if the instigation in fact substantially contributed to the commission of one of the crimes under Articles 2 to 4 of the Statute. By contrast, direct and public incitement to commit genocide under Article 2(3)(c) is itself a crime, and it is not necessary to demonstrate that it in fact substantially contributed to the commission of acts of genocide.[3] In other words, the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom. This is confirmed by the travaux préparatoires to the Genocide Convention, from which it can be concluded that the drafters of the Convention intended to punish direct and public incitement to commit genocide, even if no act of genocide was committed, the aim being to forestall the occurrence of such acts.[4] The Appeals Chamber further observes — even if this is not decisive for the determination of the state of customary international law in 1994 — that the Statute of the International Criminal Court also appears to provide that an accused incurs criminal responsibility for direct and public incitement to commit genocide, even if this is not followed by acts of genocide.[5] 679. The second difference is that Article 2(3)(c) of the Statute requires that the incitement to commit genocide must have been direct and public, while Article 6(1) does not so require. [1] In this respect, see Akayesu Trial Judgement, para. 560, quoted and approved in the Judgement, para. 1012. [2] “Incit[ation]” in the French version of Article 6(1) of the Statute. [3] Kajelijeli Trial Judgement, para. 855; Niyitegeka Trial Judgement, para. 431; Musema Trial Judgement, para. 120; Rutaganda Trial Judgement, para 38; Akayesu Trial Judgement, para. 562. The Trial Chamber endorsed this jurisprudence (Judgement, paras. 1013 and 1015) and the Appellants do not challenge this finding: see Nahimana Appellant’s Brief, para. 189; Barayagwiza Appellant’s Brief, para. 259; Ngeze Appellant’s Brief, paras. 255-256; Ngeze Brief in Reply, para. 31. [4] The United States proposed amendment to remove incitement from the list of punishable acts (see UN ORGA, Sixth Committee, Third Session, 84th meeting, UN Doc. A/C.6/3/SR. 84, 26 October 1948, pp. 213-214) was rejected by 27 votes to 16, with 5 abstentions: UN ORGA, Sixth Committee, Third Session, 85th meeting, UN Doc. A/C.6/3/SR. 85, 27 October 1948, p. 229. Many delegations which voted to reject this amendment explained that it was important to make direct and public incitement to commit genocide punishable even when it was not followed by acts, so that the Convention should be an effective instrument for the prevention of genocide: see UN ORGA, Sixth Committee, Third Session, 84th and 85th meetings, UN Doc. A/C.6/3/SR. 84 and UN Doc. A/C.6/3/SR. 85, 27 and 27 October 1948, p. 208 (Venezuela), 215 and 226 (Poland), 216 (Yugoslavia), 219 (Cuba), 219, 227 and 230 (USSR), 222 (Uruguay), 223 (Egypt). The Appeals Chamber notes that the Draft Code of Crimes against the Peace and Security of Mankind by the International Law Commission in 1996 provides that direct and public incitement to commit genocide is punishable only if the act in fact occurs: see Articles 2(f) and 17 of the Draft Code of Crimes against the Peace and Security of Mankind and the comments relating thereto, 1996, Report of the International Law Commission on the deliberations of its 48th meeting, 51 UN ORGA Supp. (No. 10), reproduced in the Yearbook of the International Law Commission, 1996, vol. II (Part Two) (hereinafter “Draft Code of Crimes against the Peace and Security of Mankind”). However, the Appeals Chamber considers that this position does not reflect customary international law on the matter. Indeed, the International Law Commission itself specified that this limitation “does not in any way affect the application of the general principles independently of the Code or of similar provisions contained in other instruments, notably article III of the Convention on the Prevention and Punishment of the Crime of Genocide”: Draft Code of Crimes against the Peace and Security of Mankind, footnote 45 (para. 6, p. 20). [5] Indeed, Article 25(3)(b) of the Statute of the International Criminal Court provides that any person who “orders, solicits or induces” the commission of a crime falling under the jurisdiction of the Court shall be individually responsible for such a crime “which in fact occurs or is attempted”. However, Article 25(3)(e) of the Statute of the International Criminal Court provides that a person may incur criminal responsibility for direct and public incitement to commit genocide and it does not require the “commission or attempted commission of such a crime”. |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 07.07.2006 |
NTAGERURA et al. (Cyangugu) (ICTR-99-46-A) |
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At para. 26, the Appeals Chamber recalled in a comprehensive manner what the elements of command responsibility under Article 6(3) are: 26. In relation to an allegation of superior responsibility under Article 6(3) of the Statute, the material facts which must be pleaded in the indictment are: (1) that the accused is the superior of certain persons sufficiently identified, over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible;[1] (2) the criminal acts of such persons, for which he is alleged to be responsible;[2] (3) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates;[3] and (4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[4] [1] Blaškić Appeal Judgement, para. 218(a). [2] Naletilić and Martinović Appeal Judgement, para. 67. [3] Blaškić Appeal Judgement, para. 218(b). The Appeals Chamber notes that “the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior, although the Prosecution remains obliged to give all the particulars which it is able to give, will usually be stated with less precision because the detail of those acts are often unknown, and because the acts themselves are often not very much in issue”: Blaškić Appeal Judgement, para. 218 and accompanying references. See also Naletilić and Martinović Appeal Judgement, para. 67. [4] Blaškić Appeal Judgement, para. 218(c). See also Naletilić and Martinović Appeal Judgement, para. 67. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 18.03.2010 |
BIKINDI Simon (ICTR-01-72-A) |
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145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […] 146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […] 148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5] [1] Bikindi’s Appellant’s Brief, para. 109, citing Nahimana et al. Appeal Judgement, para. 678. See also AT. [Transcript page from Appeal hearings held on 30 September 2009 in Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A] 30 September 2009 pp. 72, 73. [2] Mrkšić and [ljivančanin Appeal Judgement, para. 375, quoting D. Nikolić Sentencing Appeal Judgement, para. 46; Stakić Appeal Judgement, para. 375. See also Nahimana et al. Appeal Judgement, para. 1060. [3] See supra [Bikindi’s Appellant’s Brief] para. 141. [4] See, e.g., Organic Law No. 33bis/2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes, of 6 September 2003 (“Organic Law No. 33bis/2003”), Article 2. [5] See Organic Law No. 33bis/2003, Article 17(3). The Appeals Chamber observes that whilst it would have been preferable for the Trial Chamber to also refer to Organic Law No. 33bis/2003 in its discussion on the Rwandan law relating to the offence of genocide, its failure to do so does not impact the validity of the Trial Chamber’s overall assessment of Rwanda’s sentencing practice. |
ICTR Statute
Article 2(3)(c) ICTY Statute Article 4(3)(c) |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 20.02.2001 |
DELALIĆ et al. (Čelebići) (IT-96-21-A) |
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378. [T]he Appeals Chamber considers that a person in the position of Mucić [a prison camp commander] commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where (i) he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the state;[1] or (ii) he knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).[2] 379. Where a person who has authority to release detainees knows that persons in continued detention have a right to review of their detention[3] and that they have not been afforded that right, he has a duty to release them. Therefore, failure by a person with such authority to exercise the power to release detainees, whom he knows have not been afforded the procedural rights to which they are entitled, commits the offence of unlawful confinement of civilians, even if he is not responsible himself for the failure to have their procedural rights respected. [1] This relates to the first “category” of the offence. [2] This relates to the second “category”. [3] It is unnecessary that he is aware of the legal source of this right. |
ICTY Statute Article 2(g) Other instruments Geneva Convention IV: Articles 5; 42; 43. | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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484. The Appeals Chamber recalls that, for the liability of an accused to be established under Article 6(3) of the Statute, the Prosecutor has to show that: (1) a crime over which the Tribunal has jurisdiction was committed; (2) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over this subordinate (i.e., he had the material ability to prevent or punish commission of the crime by his subordinate); (3) the accused knew or had reason to know that the crime was going to be committed or had been committed; and (4) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate.[1] 865. [I]t is not necessary for the accused to have had the same intent as the perpetrator of the criminal act; it must be shown that the accused “knew or had reason to know that the subordinate was about to commit such act or had done so”.[2] Furthermore, it is not necessary for the Appellant’s subordinates to have killed Tutsi civilians: the only requirement is for the Appellant’s subordinates to have committed a criminal act provided for in the Statute, such as direct and public incitement to commit genocide. [1] See Halilović Appeal Judgement, paras. 59 and 210; Gacumbitsi Appeal Judgement, para. 143; Blaškić Appeal Judgement, paras. 53-85; Bagilishema Appeal Judgement, paras. 24-62; Čelebići Appeal Judgement, paras. 182-314. [2] Article 6(3) of the Statute. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2016 |
STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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139. In relation to Stanišić’s submission that the Trial Chamber failed to provide a reasoned opinion as to whether and how his acts and conduct furthered the JCE, and whether his alleged contribution to the JCE was significant, the Appeals Chamber notes that the Trial Chamber indeed did not enter express findings in this regard. The Appeals Chamber recalls that these are legal requirements in order for joint criminal enterprise liability to be incurred[1] and that not every type of conduct will amount to a significant enough contribution to the crime to give rise to criminal liability.[2] A trial chamber’s determination of whether and to what extent an accused’s acts and conduct furthered the joint criminal enterprise, and whether the requisite threshold of significance is met, are therefore relevant legal findings essential to the determination of an accused’s guilt, and must be set out in a clear and articulate manner.[3] The lack of explicit findings in this regard falls short of what is required under Article 23(2) of the Statute and Rule 98ter(C) of the Rules.[4] Neither Stanišić nor the Appeals Chamber should be expected to engage in a speculative exercise to discern the Trial Chamber’s findings in this regard.[5] 140. In this context, the Appeals Chamber further considers that the absence of these essential legal findings and the accompanying reasoning have necessarily hindered Stanišić’s ability to appeal his conviction, as he would have been unable to identify exactly which underlying factual findings the Trial Chamber relied upon in its ultimate conclusion that he contributed significantly to the furtherance of the JCE. The Appeals Chamber therefore finds that the Trial Chamber’s failure to enter express findings as to whether and how Stanišić’s acts and conduct furthered the JCE, and whether his contribution was significant constitutes a failure to provide a reasoned opinion. [1] Popović et al. Appeal Judgement, para. 1378; Krajišnik Appeal Judgement, paras 215, 218, 695; Brđanin Appeal Judgement, paras 427, 430. See supra [Stanišić and Župljanin Appeal Judgement]], para. 136. [2] Šainović et al. Appeal Judgement, para. 988; Brđanin Appeal Judgement, para. 427. [3] Stanišić and Simatović Appeal Judgement, para. 78; Popović et al. Appeal Judgement, para. 1906; Bizimungu Appeal Judgement, paras 18-19. [4] See Kordić and Čerkez Appeal Judgement, paras 384-385; Bizimungu Appeal Judgement, paras 18-19. [5] Cf. Orić Appeal Judgement, para. 56. The Trial Judgement must enable the Appeals Chamber to discharge its task pursuant to Article 25 of the Statute based on a sufficient determination as to what evidence has been accepted as proof of all elements of the mode of liability charged (Cf. Kordić and Čerkez Appeal Judgement, para. 385). The Appeals Chamber notes that, by contrast, after analysing Župljanin’s conduct, the Trial Chamber concluded that “during the Indictment period, Stojan Župljanin significantly contributed to the common objective to permanently remove Bosnian Muslims and Bosnian Croats from the territory of the planned Serbian state” (Trial Judgement, vol. 2, para. 518. See Trial Judgement, vol. 2, para. 510 (holding that Župljanin’s “omission to take adequate measures to stop the mass arrest of non-Serbs and his policemen’s involvement therein constituted at least a significant contribution to the unlawful arrests, if not a substantial one”)). The Appeals Chamber considers that the different approach taken with respect to Župljanin further highlights the Trial Chamber’s failure to enter the requisite findings with respect to Stanišić (see Bizimungu Appeal Judgement, para. 19 and fn. 52 (wherein the Appeals Chamber noted that “[b]]y contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions”, specifying that the trial chamber made “legal findings on the crime of genocide in relation to Ndindiliyamana”)). |
ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter | |