M.4. The perpetrator intended to order the commission of the crime, or was aware of the substantial likelihood that the commission of the crime would be a consequence of his or her acts.

M.4.1. The perpetrator meant to engage in the conduct;

M.4.2. The perpetrator meant to cause the consequence of crime; OR

M.4.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.

M.4.4. The perpetrator was aware of the circumstance of the crime

M.4. The perpetrator intended to order the commission of the crime, or was aware of the substantial likelihood that the commission of the crime would be a consequence of his or her acts.

The Blaškić Trial Chamber states that:

"[…], what is important is the commander’s mens rea, not that of the subordinate executing the order. Therefore, it is irrelevant whether the illegality of the order was apparent on its face."

Approving this opinion, the Stakić Trial Chamber added that:

"The person ‘ordering’ must […] have been aware of the substantial likelihood that the crime committed would be the consequence when executing or otherwise furthering the implementation of the order. The Trial Chamber considers, however, that an additional conviction for ordering a particular crime is not appropriate where the accused is found to have committed the same crime."[1]

Similarly, in Nyiramasuhuko et al., the Trial Chamber stated that:

"A person in a position of authority may incur responsibility for "ordering" another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act. Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order."[2]

Concerning the evidence of the superior’s knowledge the Mucić et al. ("Čelebići") Trial Chamber stated that:

"the superior’s knowledge of the offences committed by his subordinates […] cannot be presumed, but must be established by way of circumstantial evidence. In determining whether a superior, despite pleas to the contrary, in fact must have possessed the requisite knowledge, the Trial Chamber may consider, inter alia, the following indicia, listed by the Commission of Experts in its Final Report:

(a) The number of illegal acts;

(b) The type of illegal acts;

(c) The scope of illegal acts;

(d) The time during which the illegal acts occurred;

(e) The number and type of troops involved;

(f) The logistics involved, if any;

(g) The geographical location of the acts;

(h) The widespread occurrence of the acts;

(i) The tactical tempo of operations;

(j) The modus operandi of similar illegal acts;

(k) The officers and staff involved;

"(l) The location of the commander at the time."[3]

The Blaškić Appeal Chamber considered:

"that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard. […] that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime."[4]

In Hategekimana, the Appeal Chamber stated that:

"a person in a position of authority may incur responsibility for ordering another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act. Ordering, like any other form of responsibility, can be inferred from circumstantial evidence, so long as it is the only reasonable inference."[5]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 232: 

"232. The individual must have possessed the direct intent to order a crime. Moreover, the individual who “orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order”, and accepts such likelihood, possesses the requisite mens rea for being found responsible on the basis of Article 7(1) of the Statute. The Appeals Chamber has considered that the fact of giving an order while aware of the substantial likelihood that a crime would be committed while that order was being carried out constituted acceptance of the resulting crime. It is not necessary to establish that the crime would not have been committed without the order, but the order must have had a direct and substantial effect on the commission of the illegal act."

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. 573:

"573. To be held criminally responsible for ordering the commission of a crime, an accused must have instructed another person to engage in an act or an omission, and such instruction must have resulted in the commission of a crime. The accused must have held a position of authority over the other person, but it need not be formal and may even be temporary. However, there must be “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”.  The order need not be in written or any particular form, nor must it be transmitted directly to the physical perpetrator. As with planning and instigating, it need not be shown that the crime would not have been perpetrated but for the accused’s order, but the order must have had “a direct and substantial effect on the commission of the illegal act”. The accused must intend to order a crime, or must be aware of the substantial likelihood that a crime would be committed in the execution of the act or omission ordered."

M.4.1. The perpetrator meant to engage in the conduct;

The Tadić Trial Chamber has found that:

"It should be noted that more than negligence is required. What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called dolus eventualis is required (also called ‘advertent recklessness’ in some national legal systems)"."[6]

M.4.2. The perpetrator meant to cause the consequence of crime; OR

The Blaškić Trial Chamber stated that:

"[…] proof is required that whoever planned, instigated or ordered the commission of a crime possessed the criminal intent, that is, that he directly or indirectly intended that the crime in question be committed."[7]

The Kordić Trial Chamber endorsed the finding of the Blaškić Trial Chamber by stating that:

"an accused will only be held responsible for planning, instigating or ordering a crime if he directly or indirectly intended that the crime be committed"."[8]

Finally, the Kvočka Trial Chamber has expressly stated that:

"[t]he requisite mens rea is that, as in other forms of criminal participation under Article 7(1), the accused acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct"."[9]

M.4.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.

M.4.4. The perpetrator was aware of the circumstance of the crime

In Dubrovnik, the Trial Chamber found that:

"The escalation of JNA artillery fire on Dubrovnik into the deliberate, indiscriminate and extensive shelling which occurred, although not dissimilar to the previous episodes, was a marked step further than was implied by the Accused’s order, and occurred in circumstances sufficiently different from the previous episodes as to reduce to some degree the apparent likelihood of a repetition of the previous conduct of his forces. While the circumstances known to the Accused, at the time of his order to attack Srd, can only have alerted him to the possibility that his forces would once again ignore orders and resort to deliberate and indiscriminate shelling, it must be established by the Prosecution that it was known to the Accused that there was a substantial likelihood of this occurring. The risk as known to the Accused was not slight or remote; it was clearly much more real and obvious. Nevertheless, the evidence falls short, in the Chamber’s view, of establishing that there was a "substantial likelihood" that this would occur known to the Accused when he ordered the attack on Srd."[10]