M.2. The perpetrator commanded, authorized, urged, incited, requested, or advised another person to commit the crime

As noted by ICTY Trial Chamber in The Prosecutor v. Vojislav Sešelj:

"294. For a Chamber to be able to find that instigation to commit crimes existed, it must establish that there was a physical element, or actus reus, for the acts constituting instigation, which must have contributed substantially to the commission of the crimes, and that there was a mental element, or mens rea, showing the intention of the instigator to cause the commission of the crimes.

295. The physical element of instigation involves prompting another person to commit an offence. 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 contributing to the conduct of another person committing the crime. The Chamber, by a majority, Judge Lattanzi dissenting, considers that it should also be demonstrated that the instigator used different forms of persuasion such as threats, enticement or promises to the physical perpetrators of the crimes. Furthermore, it considers that the incriminating statements must be clearly identifiable and their existence firmly established." [1]

In the Ntaganda Decision on the Charges, the Pre-Trial Chamber held that:

"The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility for the mode of liability of inducing, the following objective and subjective elements must be fulfilled: (a) the person exerts influence over another person to either commit a crime which in fact occurs or is attempted or to perform an act or omission as a result of which a crime is carried out; (b) the inducement has a direct effect on the commission or attempted commission of the crime; and (c) the person is at least aware that the crimes will be committed in the ordinary course of events as a consequence of the realisation of the act or omission. "[11]

In the Gbagbo Decision on the Confirmation of Charges, the Trial Chamber held that:

"242. Article 25(3)(b) of the Statute provides for individual criminal responsibility if a person "orders, solicits or induces the commission" of a crime within the jurisdiction of the court which in fact occurs or is attempted.

243. The Chamber is of the view that "ordering", "soliciting" and "inducing" in essence fall into a broader category of "instigating" or "prompting another person to commit a crime", in the sense that they refer to a conduct by which a person is influenced by another to commit a crime. Therefore, the Chamber will consider the elements of "ordering", as previously applied by the Court, as equally applicable to "soliciting" and "inducing", with the exception of the requirement of a position of authority, which is particular to "ordering" and is not a necessary element of "soliciting" or "inducing"."[12]

 

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 294-295:

294. For a Chamber to be able to find that instigation to commit crimes existed, it must establish that there was a physical element, or actus reus, for the acts constituting instigation, which must have contributed substantially to the commission of the crimes, and that there was a mental element, or mens rea, showing the intention of the instigator to cause the commission of the crimes.

295. The physical element of instigation involves prompting another person to commit an offence. 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 contributing to the conduct of another person committing the crime. The Chamber, by a majority, Judge Lattanzi dissenting, considers that it should also be demonstrated that the instigator used different forms of persuasion such as threats, enticement or promises to the physical perpetrators of the crimes. Furthermore, it considers that the incriminating statements must be clearly identifiable and their existence firmly established.

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. 3327:

"3327. The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence. It is not necessary to prove that the accused was present when theinstigated crime was committed 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."

M.2.1. Act or omission of prompting another person to attempt or commit the crime

According to the Judgment of the Kordić Trial Chamber:

"it must be proved that the accused directly intended to provoke the commission of the crime"."[2]

According to the Blaškić Trial Chamber:

"[i]nstigating entails ‘prompting another to commit an offence’[,] […] both acts and omissions […] and […] both express and implied conduct."[3]

Moreover, the Blaškić Trial Chamber stated that:

"[t]he ordinary meaning of instigating, namely, ‘bring about’ the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof"[4]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 224, 226-230: 

"224. Individual criminal responsibility may be imputed when an individual prompts another person to commit a crime which is then carried out. Express or implied conduct may constitute instigating. Moreover, it is not necessary to prove that the accused wielded effective control or any form of authority whatsoever over the perpetrator or perpetrators of the crime."

"226. Several trial chambers have confirmed that instigation may take the form of a positive act or of an omission. Those trial chambers relied primarily on the Blaškić Judgement, which after recalling that instigation “entails prompting another to commit an offence”, added that “[this] wording is sufficiently broad to allow for the inference that both acts and omissions may constitute instigating and that this notion covers both express and implied conduct”."

"227. In reaching this conclusion in connection with its analysis of instigation, the Blaškić Chamber did not refer to any case-law or other authoritative text. By contrast, it did refer to statutes applicable in the SFRY when analysing cumulative responsibility from the perspective of Articles 7(1) and 7(3) of the Statute. The Blaškić Chamber indeed recalled that “the failure to punish past crimes, which entails the commander‟s responsibility under Article 7(3), may pursuant to Article 7(1) and subject to the fulfilment of the requirements for the mental and physical elements, respectively, also be the basis for his liability for either aiding and abetting or instigating the commission of further crimes”. According to these passages, a commander will be responsible “as a participant or instigator if, by not taking measures against subordinates who violate the law of war, he allows his troops to continue to commit the acts”. The Blaškić Chamber adds, further to this, that in this instance, for the commanding officer to be responsible as an instigator by omission, it is necessary to establish (1) that the commander had the requisite mens rea for instigation and (2) that the subordinates would not have committed the subsequent crimes if the commander had not failed to punish the earlier ones."

"228. The Appeals Chamber has neither upheld nor overturned this finding in relation to instigation by omission and, consequently, did not establish any jurisprudence in this regard."

"229. The Chamber cannot follow the other Trial Chambers on this point, holding the contrary view, that the very notion of instigation requires a positive act on the part of the instigator. The verb “to instigate” – to urge on or to incite a person to do something – implicitly suggests a positive action."

"230. The Chamber is all the more persuaded of the need to rule out responsibility of that kind, given that, as the Blaškić Chamber has stressed, such responsibility for omission resulting from a breach of the duty to punish is addressed under responsibility pursuant to Article 7(1) for aiding and abetting. The latter responsibility, moreover, makes it possible to resolve the challenge of reconciling the words “instigation” and “omission” themselves noted by the Chamber."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 572:

"572. Criminal liability for instigation would be incurred when an accused prompts another person to commit an offence, which is actually committed. The prompt may be either express or implied, it need not be direct or public, and it may consist of either an act or an omission. The accused’s prompting must have been a factor “substantially contributing to the conduct of another person committing the crime”, but the Prosecution need not prove that the crime would not have been committed but for such prompting, or that the accused had effective control or any other sort of authority over the perpetrator. The accused must intend to instigate another person to commit a crime, or at a minimum, he must be aware of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated."

M.2.2. Nexus requirement: Such act or omission being a clear contributing factor to the attempt or the commission of the crime.

Nevertheless, the Zigiranyirazo Trial Chamber holds that:

"[i]t 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."[5]

Nearly citing the Blaškić Trial Chamber concerning "ordering" the Kordić Appeals Chamber stated that:

"[w]ith respect to ‘instigating’, 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."[6]

 

Prosecutor v. Augustin Ngirabatware, Case No. MITC-12-29-A, Judgment (AC), 18 December 2014, paras. 160-163:

"160. Ngirabatware argues that the Trial Chamber erred 10 finding that his statements at the roadblocks instigated the Interahamwe to kill Tutsis. In particular, he argues that: (i) the majority of his statements were addressed to Bagango; (ii) none of the Interahamwe who heard the remaining statements had been identified; and (iii) there is no evidence that any subsequent killings were prompted specifically by his words.

161. The Prosecution responds that none of Ngirabatware's statements were made exclusively to Bagango and that the link between Ngirabatware's conduct and statements and the killings was established on the evidence.

162. The evidence considered by the Trial Chamber showed that during Ngirabatware's second visit to the Bruxelles roadblock, Ngirabatware addressed the lnterahamwe manning the roadblock by telling them that they only pretended to work and accused Nyambwega of communicating with "Inyenzi". The evidence also showed that Ngirabatware told the Interahamwe that he delivered the weapons because he did not want to see any Tutsis in Busheke cellule. The Appeals Chamber recalls that the actus reus of “instigating” implies prompting another person to commit an offence. The Trial Chamber noted that, immediately after Ngirabatware gave weapons to the lnterahamwe at the Bruxelles roadblock, these lnterahamwe attacked Nyambwega with a machete, and inflicted serious bodily injury by cutting his ear and leg. The Trial Chamber also referred to Witness ANAO's evidence that those manning the roadblocks were "desirous of carrying out instructions" and people were killed at the roadblocks. In view of the scale of the crimes, the Trial Chamber was not required to identify each member of the Interahamwe who was prompted by Ngirabatware's inflammatory statements to commit killings or each individual victim of such crimes. The Appeals Chamber is satisfied that a reasonable trier of fact could have concluded that the only reasonable inference from the evidence was that Ngirabatware prompted the Interahamwe at the Bruxelles roadblock to attack and kill Tutsis.

163. Accordingly, Ngirabatware's argument that the Trial Chamber erred in relation to the actus reus element of instigation is dismissed."