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

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

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

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

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"."[11]

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 583:

''583. The Appeals Chamber recalls that to establish the actus reus of conspiracy to commit genocide where direct evidence of an agreement to commit genocide is lacking, an agreement to commit genocide may be inferred from the conduct of the conspirators or the concerted or coordinated action of a group of individuals, so long as it is the only reasonable inference to be drawn from the totality of the evidence. The Trial Chamber was therefore entitled to consider all the relevant facts and circumstances, including any factual findings made in the context of determining whether genocide had been committed. The Appeals Chamber therefore dismisses Tolimir’s submission.'' 

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."

 Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, para. 2045:

"2045. The actus reus of the crime is “an agreement between individuals to commit genocide”. The agreement need not be formal. An agreement may be proved by direct evidence of the conspiracy itself, such as evidence of planning meetings for the genocide, or may be inferred from circumstantial evidence. The concerted or coordinated action of a group of individuals may also constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: it is not sufficient to simply show similarity of conduct. In certain cases the existence of a conspiracy to commit genocide between individuals controlling institutions could be inferred from the interaction between these institutions. When based on circumstantial evidence, the finding of a conspiracy must be the only reasonable inference based on the totality of the evidence."

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"."[1]

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."[2]

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"[3]

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."[4]

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."[5]