Liability for omissions

Notion(s) Filing Case
Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)

To be held criminally responsible for omissions under Article 6(1) of the ICTR Statute, the Accused must have had a duty to act. The Appeals Chamber noted that it is an open question whether this duty to act must derive from criminal law or whether any legal obligation to act is sufficient. In particular, the Appeals Chamber remarked that the issue has not been settled by the Blaškić Appeal Judgement, and found that it was not necessary to decide the issue in the present case (paras 334-335):

334. It is not disputed by the parties that an accused can be held criminally responsible for omissions under Article 6(1) of the Statute.[1] Neither do they dispute that any criminal responsibility for omissions requires an obligation to act. The issue is rather whether this obligation to act must stem from a rule of criminal law, or, as the Prosecution appears to contend, any legal obligation is sufficient. The Appeals Chamber notes that the Blaskić Appeal Judgement, on which the Prosecution relies in its Reply,[2] does not address this issue.[3]

335.    In the context of the present case, it is not necessary to discuss this issue further. The Trial Chamber based its conclusion on two different arguments: The duty of the prefect was not mandated by a rule of criminal law, and it was not clear what means were available to Bagambiki to fulfil this duty. The Appeals Chamber also notes the Separate Opinion of Judge Ostrovsky:

In my view, the Prosecutor simply failed to introduce sufficient evidence concerning what additional resources were available to the prefecture to stem the tide of violence and to provide greater protection to the refugees. On the basis of the totality of the reliable and credible evidence presented in this case, I am not convinced that Bagambiki, with the resources available to him, could do more for the protection of refugees in Cyangugu prefecture.[4]

The Prosecution has not indicated which possibilities were open to Bagambiki to fulfil his duties under the Rwandan domestic law. Thus, even if the failure to fulfil the duty of a Rwandan prefect to protect the population of his prefecture could entail responsibility under international criminal law, the Prosecution has not shown that the alleged error of the Trial Chamber invalidated its decision.

[1] See e. g. Blaskić Appeal Judgement, para. 663 (regarding Article 7(1) of the ICTY Statute).

[2] Prosecution Brief in Reply, para. 75.

[3] Blaskić Appeal Judgement, fn. 1385 to para. 663, cites Article 86(1) of Additional Protocol I: “The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so”, indicating that not every failure to act gives rise to criminal responsibility. In Blaskić, the duty to act was qualified as one imposed by the “laws and customs of war” (Blaskić Appeal Judgement, para. 668). Cf. also Bagilishema Appeal Judgement, para. 36: “The line between those forms of responsibility which may engage the criminal responsibility of the superior under international law and those which may not can be drawn in the abstract only with difficulty” and A. Cassese, International Criminal Law, p. 202: “It should be noted that serious violations of many of the above positive obligations […] amount to a war crime” (emphasis added).

[4] Judge Ostrovsky Opinion, para. 17.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav

At para. 175, the Appeals Chamber affirmed that “the omission of an act where there is a legal duty to act,[1] can lead to individual criminal responsibility under Article 7(1) of the Statute.”[2]

[1] See Ntagerura et al. Appeal Judgement, paras 334-335.

[2] Blaškić Appeal Judgement, para. 663. See also Tadić Appeal Judgement, para. 188: “This provision [Article 7(1) of the Statute] covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)