170. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing. […]

360. In its Judgement, the Trial Chamber considered the correct definition for ordering under Article 6(1) of the Statute to be as follows:

“Ordering” refers to a situation where an individual has a position of authority and uses that authority to order – and thus compel – another individual, who is subject to that authority, to commit a crime. Criminal responsibility for ordering the commission of a crime under the Statute implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it. [1]

361. Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber’s approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required.[2] It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.[3] The Trial Chamber thus committed no legal error in its enunciation of the elements of ordering. 

363. It should be recalled that authority creating the kind of superior-subordinate relationship envisaged under Article 6(1) of the Statute for ordering may be informal or of a purely temporary nature. Whether such authority exists is a question of fact. […]

80. […] The Appeals Chamber notes that, contrary to the Defence’s assertion, the position of an accused in “high political offices” has been considered as an aggravating factor for the purposes of sentencing even where an accused’s leadership of a joint criminal enterprise is not at issue.[1]  Several cases before the International Tribunal in which the mode of liability of joint criminal enterprise was not at issue illustrate that a Trial Chamber has the discretion to take into account, as an aggravating circumstance, the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] A high rank in the military or political field does not, in itself, merit a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence.[3]  Consequently, what matters is not the position of authority taken alone, but that position coupled with the manner in which the authority is exercised.[4] For instance, in the Aleksovski case, the Appeals Chamber considered that the superior responsibility of the appellant, who was a prison warden, “seriously aggravated [his] offences, [as] [i]nstead of preventing it, he involved himself in violence against those whom he should have been protecting”.[5] In Ntakirutimana, the ICTR Appeals Chamber concurred with the Trial Chamber that the abuse of the appellant’s personal position in the community was an aggravating circumstance.[6] 

81. In the present case, the Trial Chamber did not hold that the Appellant’s position as a regional political leader in itself constituted an aggravating circumstance. The Trial Chamber thoroughly considered the Appellant’s behaviour as a regional political leader and stressed that it considered his leadership position as an aggravating circumstance because he used his authority to enlist resources of the SAO Krajina to further the joint criminal enterprise, made inflammatory speeches during public events and in the media which prepared the ground for the Serb population to accept that their goals could be achieved through acts of persecution, and amplified the consequences of the campaign of persecutions by allowing it to continue.[7] Therefore, the Appeals Chamber considers that the Trial Chamber correctly found that the Appellant’s leadership position was an aggravating circumstance.

324. The Appeals Chamber recalls that a Trial Chamber “shall take into account […] any aggravating circumstances”,[1] which may include the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] What matters is not the position of authority taken alone, but that position coupled with the manner in which the authority was exercised: abuse of superior position may be considered an aggravating factor.[3]

302. […] [T]he Appeals Chamber recalls that it is settled jurisprudence of this Tribunal that while a position of authority, even at a high level, does not automatically warrant a harsher sentence, the abuse of such may indeed constitute an aggravating factor.[1] The Appeals Chamber further reiterates, Judge Liu dissenting, that this holds true in the context of a conviction under Article 7(1) of the Statute, including the mode of responsibility for planning and ordering crimes.[2] Before arriving at its conclusion, the Trial Chamber in the instant case specifically took into account Milošević’s high rank within the VRS, the ensuing special responsibility to uphold the standards of international humanitarian law, and the fact that he was highly respected by the SRK staff.[3] In this regard, the Appeals Chamber recalls that whereas the mode of liability of ordering requires that the person giving the order has a position of authority, the abuse of such authority may still be considered an aggravating factor in sentencing.[4] The Trial Chamber was mindful of the fact that the superior position per se does not constitute an aggravating factor and did not consider Milošević’s authority to give orders to that effect.[5] Rather, it took into account the particularly high level of Milošević’s authority and the high esteem of his soldiers in assessing whether his conduct amounted to an abuse of his superior position. Milošević has failed to demonstrate any error in this regard.

303. […] In addition, the Appeals Chamber recalls that the superior’s abuse of his position of a high level of authority may also be taken into consideration for a conviction under Article 7(3) of the Statute.[6]

The Appeals Chamber held the following:

412. While the mode of liability of ordering necessarily entails that the person giving the order has a position of authority,[1] the level of authority may still play a role in sentencing as it is not an element of the mode of liability of “ordering” that an accused is high in the chain of command and thus wields a high level of authority.[2] […]

357.    The Appeals Chamber finds that the fact that the Accused held a position of authority or leadership may constitute an aggravating factor in sentencing. In the Kambanda Appeal Judgement, this Chamber, in affirming the sentence imposed by the Trial Chamber, expressly noted the Trial Chamber finding that “the aggravating circumstances surrounding the crimes negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post at the time he committed the said crimes.”[1] Furthermore, in the Aleksovski Appeal Judgement, ICTY Appeals Chamber maintained that the Appellant’s “superior responsibility as a warden seriously aggravated the Appellant’s offences, [and that] instead of preventing it, he involved himself in violence against those whom he should have been protecting …”.[2]

358.    The Appeals Chamber would interpret the existing jurisprudence on this point as follows: Article 6(3) imposes liability on a superior if he knew or had reason to know that his subordinate was about to commit such acts or had done so, and had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators. The mere fact that an accused has command authority is not an aggravating circumstance in sentencing, in respect of Article 6(3) charge; that goes only to conviction. However, a finding that superior responsibility lies because of such failure to prevent or punish does not preclude a further finding that the manner in which an accused exercises his command can be an aggravating circumstance in relation to sentencing. […]