M.1. The Perpetrator Committed the Crime as an Individual

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, para. 3322:

"3322. The Appeals Chamber has held in relation to genocide that "committing" under Article 6(1) of the Statute, which envisions the physical perpetration of a crime, does not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime. The question is whether an accused’s conduct was “as much an integral part of the crimes] as were the killings which it enabled.” 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 crime scene and conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators."

M.1.1. The direct perpetration of the crime by the perpetrator

M.1.1.1. ICTY

The Mucić et al. ("Čelebići") Trial Chamber held:

"The principles of individual criminal responsibility enshrined in Article 7, paragraph 1, of the Statute reflect the basic understanding that individual criminal responsibility for the offences under the jurisdiction of the International Tribunal is not limited to persons who directly commit the crimes in question. Instead, as stated in the Report of the Secretary-General: "all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible?(Report of the Secretary-General, para. 54.)"[1]

The Deronjić Trial Chamber held that:

"Using the word "committed" does not mean that the Accused physically committed any of the crimes charged personally."[2]

Acccording to the Oric Trial Chamber:

"‘committing’ which, in principle, would require an accused’s perpetration of the alleged crimes in person."[3]

The Blagojević and Jokić Appeals Chamber found that:

"It is commonly understood that individual criminal responsibility will attach for "committing" a crime where it is established that the accused himself physically perpetrated the criminal act or personally omitted to act when required to do so under law."[4]

The Mrkšić et al. Trial Chamber held that:

"However, criminal liability not only attaches to the physical perpetrator of a particular crime but in certain circumstances, it extends to those who participate in and contribute to its commission in various ways."[5]

The Lukić and Lukić Trial Chamber held that:

"Committing a crime covers physically or directly perpetrating a crime or engendering a culpable omission in violation of criminal law"[6]

According to the Simić, Tadić and Zarić ("Bosanski ?amac") Trial Chamber:

"The meaning to be attached to "committed", the highest degree of participation in a crime, is not controversial. Any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with the requisite knowledge. An accused person will be held criminally responsible if he actually carries out the actus reus of the enumerated crimes. There can be several perpetrators in relation to the same crime where the conduct of each of them fulfils the elements of the definition of the substantive offence. The requisite mens rea is that the accused intended that a criminal offence occur as a consequence of his conduct."[7]

The Haradinaj et al. Trial Chamber held:

"Article 7 (1) covers first and foremost the physical perpetration of a crime or the culpable omission of an act that was mandated by law."[8]

M.1.1.2. ICTR

The Kayishema and Ruzindana Trial Chamber held that:

"The Trial Chamber is of the opinion that, as was submitted by the Prosecution, there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6(1). This test required the demonstration of (i) participation . . . that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime."[9]

In the Kajelijeli Trial Judgment, it was held that:

"To ‘commit’ a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law. In this sense, there may be one or more perpetrators in relation to the same crime where the conduct of each perpetrator satisfies the requisite elements of the substantive offence."[10]

The Kamuhanda Trial Chamber stated that:

"Pursuant to Article 6(1), an individual’s participation in the planning or preparation of an offence within the Tribunal’s jurisdiction will give rise to criminal responsibility only if the criminal act is actually committed."[11]

The Seromba Trial Chamber held:

"Participation by ‘committing’ means the direct physical or personal participation of the accused in the perpretation of a crime or the culpable omission of an act that was mandated by a rule of criminal law."[12]

The Gacumbitsi Trial Chamber held:

"‘Committing’ refers generally to the direct and physical perpetration of the crime by the offender himself."[13]

According to the Nahimana, Barayagwiza and Ngeze Appeals Chamber:

"The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law"."[14]

The Muvunyi Trial Chamber stated that:

"Generally speaking, ‘committed’ under Article 6(1) has been interpreted to mean ‘direct and physical perpetration’ of the crime by the accused himself or his culpable omission to fulfil a duty imposed by law and attracting a penal sanction."[15]

The Rutaganda Trial Chamber held that:

"[A]n accused may participate in the commission of a crime either through direct commission of an unlawful act or by omission, where he has a duty to act."[16]

The Muvunyi Trial Chamber held that:

"The principle of individual responsibility for serious violations of international criminal law is one of the key indicators of a paradigm shift from a view of international law as law exclusively made for and by States, to a body of rules with potential application to individuals. It is now recognized that the principle of individual responsibility for serious violations of international law, affirmed in Article 6(1) of the Statute, is reflective of customary international law. Indeed, it has been established since the Versailles Treaty and especially the Nuremberg and Tokyo trials, that crimes under international law are physically committed by individuals and that irrespective of their official status, only by punishing such individuals for their criminal conduct, can the fundamental values of international law have meaning and efficacy."[17]

M.1.2. "Other acts" and act as "integral part" of the crime

M.1.2.1. ICTR

The Gacumbitsi Appeals Chamber held:

"In the context of genocide, however, ‘direct and physical perpetration’ need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime."[18]

The same was stated by the Seromba Appeals Chamber. Moreover it held that:

"The jurisprudence makes clear that ‘committing’ is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime. The question of whether an accused acts with his own hands, e.g. when killing people, is not the only relevant criterion. The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in law by holding that ‘committing’ requires direct and physical perpetration of the crime by the offender. To remedy this error, the Appeals Chamber will apply the correct legal standard—i.e., whether Athanase Seromba’s actions were ‘as much an integral part of the genocide as were the killings which [they] enabled.’ . . . [The issue is whether] Seromba became a principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide."[19]

M.1.2.2. Special Tribunal for Sierra Leone

The Fofana and Kondewa Trial Chamber held that:

"Consistent with established jurisprudence the Chamber adopts the definition of ‘committing’ a crime as ‘physical perpetrating a crime or engendering a culpable omission in violation of criminal law.’"[20]

M.1.3. Substantional contribution to the completion of the crime

M.1.3.1. ICTY

The Mucić et al. ("Čelebići") Appeals Chamber stated that:

"In the case of primary or direct responsibility, where the accused himself commits the relevant act or omission, the qualification that his participation must ‘directly and substantially affect the commission of the offence’ is an unnecessary one."[21]

According to the Lukić and Lukić Trial Chamber:

"it is sufficient that the ‘perpetrator’s conduct contributed substantially to the death of the person’"[22]

In addition, the Lukić and Lukić Trial Chamber stated also that:

"This Trial Chamber considers that a person who plays a central role in the commission of the crime of murder and embraces and approves as his own the decision to commit murder is not adequately described as an aidor and abetter but qualifies as a direct perpetrator who committed the crime."[23]

M.1.3.2. ICTR

The Kamuhanda Trial Chamber held that:

"Jurisprudence has established that for an accused to incur criminal responsibility, pursuant to Article 6(1), it must be shown that his or her participation has substantially contributed to, or has had a substantial effect on, the completion of a crime under the Statute."[24]

M.1.4. The culpabable omission in violation of a rule of criminal law where the perpetrator had a duty to act

M.1.4.1. ICTY

According to the Simić, Tadić and Zarić ('Bosanski ?amac") Trial Chamber held that:

"The meaning to be attached to "committed", the highest degree of participation in a crime, is not controversial. Any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with the requisite knowledge.."[25]

In the Blagojević and Jokić Appeals Judgment it was found that:

"It is commonly understood that individual criminal responsibility will attach for "committing" a crime where it is established that the accused himself physically perpetrated the criminal act or personally omitted to act when required to do so under law."[26]

The Lukić and Lukić Trial Chamber held that:

"Committing a crime covers physically or directly perpetrating a crime or engendering a culpable omission in violation of criminal law."[27]

M.1.4.2. ICTR

The Rutaganda Trial Chamber held that:

"[A]n accused may participate in the commission of a crime either through direct commission of an unlawful act or by omission, where he has a duty to act."[28]

In the Ntagerura, Bagambiki and Imanishimwe Trial Judgment, it was held that:

"In order to hold an accused criminally responsible for an omission as a principal perpetrator, the following elements must be established: (a) the accused must have had a duty to act mandated by a rule of criminal law; (b) the accused must have had the ability to act; (c) the accused failed to act intending the criminally sanctioned consequences or with awareness and consent that the consequences would occur; and (d) the failure to act resulted in the commission of the crime."[29]

The Ntagerura, Bagambiki and Imanishimwe Appeals Chamber observed:

"It is not disputed by the parties that an accused can be held criminally responsible for omissions under Article 6(1) of the Statute. Neither do they dispute that any criminal responsibility for omissions requires an obligation to act."[30]