480. The actus reus of “instigating” implies prompting another person to commit an offence.[1] 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.[2] The mens rea for this mode of responsibility is the intent to instigate another person to commit a crime or at a miminum the awareness of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated.[3]

660. The Appeals Chamber recalls that, for a defendant to be convicted of instigation to commit a crime under Article 6(1) of the Statute, it must be established that the acts charged contributed substantially to the commission of the crime, but they need not be a sine qua non condition for its commission. The Appeals Chamber further recalls that, contrary to what the Appellant appears to contend,[4] the accused does not need to be actually present when the instigated crime is committed.

36. The Appeals Chamber recalls that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of crimes, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges in question.[1] When the Prosecution pleads a case of “instigation”, it must precisely describe the instigating acts and the instigated persons or groups of persons.[2]

37. Paragraph 10 of the Amended Indictment does not fulfil these requirements. It merely states that the attack in Rwankeri cellule was carried out on Uwinkindi’s instigation without providing any details about when, where, and by what conduct Uwinkindi instigated this attack. Contrary to the Prosecution’s assertion, paragraph 10 of the Amended Indictment only specifies that the attack following Uwinkindi’s instigation occurred on 8 April 1994, not the act of instigation itself. Moreover, the Appeals Chamber considers that the Prosecution’s contention, that “the furtherance of the JCE” conveys by what means Uwinkindi instigated crimes, confuses the objective of his alleged instigation with the specific act or course of conduct that needed to be pleaded.

38. Apart from the broad category “armed assailants”, paragraph 10 of the Amended Indictment also does not specify to whom Uwinkindi’s instigation was directed. Furthermore, it does not indicate whether the alleged perpetrators of the killing of Paul Kamanzi were among those instigated by Uwinkindi. This manner of pleading does not inform Uwinkindi of the exact nature of the charges against him.

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.

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.

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.

3327.            The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence.[1] It is not necessary to prove that the accused was present when the instigated crime was committed[2] or 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.[3]

3328.            […] The Appeals Chamber considers that Kanyabashi’s commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill Tutsis.[4] In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi’s Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,[5] the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech.