M.3. The perpetrator intended to command, authorise, urge, incite, request or advise the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 225:

"225. The individual in question must have had the direct intent to instigate commission of the crime. Moreover, the individual 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”, likewise possesses the requisite mens rea for being found responsible on the basis of Article 7(1) of the Statute. The Appeals Chamber recalled that instigation with such awareness has to be regarded as accepting the crime."

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 294, 296:

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.

296. With respect to the definition of the instigator’s state of mind, he must have had the intent to provoke or induce the perpetration of a crime by the person who committed it330 or at least have had the awareness of the substantial likelihood that a crime would be committed in the execution of this instigation.

Prosecutor v. Augustin Ngirabatware, Case No. MITC-12-29-A, Judgment (AC), 18 December 2014, paras. 164, 166-168:

"164. Ngirabatware argues that the Trial Chamber erred in failing to make the requisite mens rea findings in relation to his liability for instigating genocide. He further argues that no reasonable trier of fact could have inferred that he had the requisite mens rea, absent evidence on: (i) the identity of the physical perpetrators; (ii) his "acquaintance with them"; and (iii) his knowledge of their genocidal intent."

"166. The Appeals Chamber recalls that the mens rea for instigating is established where the perpetrator acts with either direct intent to prompt another to commit a crime, or with awareness of the substantial likelihood that a crime will be committed in execution of that instigation. Furthermore, where the crime alleged is genocide, it must also be proven that the perpetrator acted with the specific intent to destroy a protected group as such in whole or in part.

167. The Appeals Chamber observes that, in finding Ngirabatware guilty of instigating genocide, the Trial Chamber failed to determine whether he acted with direct intent to prompt the physical perpetrators to commit genocide or with awareness of the substantial likelihood that the crime will be committed as a result of that instigation. As noted above, such determination was indispensable for finding Ngirabatware responsible for instigating the commission of genocide.

168. The Appeals Chamber notes, however, the Trial Chamber's finding that at the Bruxelles roadblock, Ngirabatware told Bagango and the lnterahamwe that he brought weapons because he did not want any Tutsis alive in Bruxelles. The Trial Chamber further considered that Ngirabatware was aware that his acts would contribute to killings committed by the Interahamwe. It also found that he possessed genocidal intent. Contrary to Ngirabatware's submission, whether he personally knew the individual perpetrators is irrelevant. The Appeals Chamber considers that, in view of the facts as found by the Trial Chamber and the evidence it relied upon, a reasonable trier of fact could have found beyond reasonable doubt that the only reasonable inference from the evidence was that Ngirabatware had the direct intent to instigate genocide. Accordingly, the Appeals Chamber dismisses Ngirabatware's arguments in this regard."

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.3.1. The perpetrator meant to engage in the conduct;

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

"296. With respect to the definition of the instigator’s state of mind, he must have had the intent to provoke or induce the perpetration of a crime by the person who committed it or at least have had the awareness of the substantial likelihood that a crime would be committed in the execution of this instigation." [1]

In Akayesu, that Trial Chamber stated that:

"The ‘direct’ element of incitement implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement."

"[…] the Chamber is of the opinion that the direct element of incitement should be viewed in the light of its cultural and linguistic content. Indeed, a particular speech may be perceived as ‘direct’ in one country, and not so in another, depending on the audience. The Chamber further recalls that incitement may be direct, and nonetheless implicit."[2]

M.3.2. The perpetrator meant to cause the consequence of crime; OR

M.3.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.

M.3.4. The perpetrator was aware of the circumstance of the crime.

The Blaškić Trial Chamber stated that:

"It would be illogical to hold a commander criminally responsible for planning, instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them. However, as submitted by the Prosecution, 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 respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting or instigating the commission of further crimes."

"In this respect, it should be noted that the regulations concerning the application of the international law of war to the armed forces of the SFRY, under the heading ‘Responsibility for the acts of subordinates’, provide that the commander is personally responsible for violations of the law of war if he knew or could have known that his subordinate units or individuals are preparing to violate the law, and he does not take measures to prevent violations of the law of war. The commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible. In case he is not authorized to charge them, and he did not report them to the authorized military commander, he would also be personally responsible.

A military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts.

While the first paragraph corresponds to individual criminal responsibility under Article 7(3) of the Statute, the second supports the Trial Chamber’s view regarding the concurrent application of Articles 7(3) and 7(1) in cases of subsequent crimes being committed."

"As stated earlier in this Judgement, in the case of instigation, proof is required of a causal connection between the instigation, which may entail an omission, and the perpetration of the act. In the scenario under discussion, this means it must be proved that the subordinates would not have committed the subsequent crimes if the commander had not failed to punish the earlier ones. However, with respect to the Defence’s submission that under Article 7(3) of the Statute proof is required that the commander’s omission caused the commission of the crime by the subordinate, the Trial Chamber is of the view that such a causal link may be considered inherent in the requirement that the superior failed to prevent the crimes which were committed by the subordinate. In other words, the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed."[3]

Moreover, the Kordić Trial Chamber has held that:

"The Trial Chamber is of the view that in cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by Article 7(1). Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1)"."[4]