Table of contents:
Element:
M.3. The perpetrator's contribution was intentional.
A. Evidentiary comment
It is does not appear that article 30 applies to cases of common purpose under article 25(3)(d) (since it contains its own mental elements), and the definition of intent given in article 30 is specified to be "for the purposes of this article". However in the absence of another useful definition or any reason for believing that "intention" carries a different meaning in article 25, it seems reasonable to treat this requirement as one that the person in question "meant to engage in" the conduct that constitutes a contribution to the crime.
Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, paras. 192-193:
"192. […] The Appeals Chamber also recalls that the purpose of the JCE was to exterminate the Tutsis of Kivumu Commune with the specific intent to destroy them as a group. 507 Accordingly, in the circumstances of the instant case, the intent required for liability under the first category of joint criminal enterprise, namely the intent to further the common purpose of the JCE,508 and the intent required for liability for committing the crimes of genocide and extermination as a crime against humanity are the same […]"
"The Appeals Chamber finds no merit in the Prosecution’s argument regarding the alleged meeting held on 20 April 1994 by Ndahimana to discuss the division of the property of Tutsis. The Appeals Chamber observes that the evidence relied upon by the Prosecution with respect to this meeting is particularly vague.509 More importantly, the Appeals Chamber does not consider that the holding of a meeting with conseillers of the commune to discuss various issues, such as the security in the sectors of the commune, the tour to be undertaken by the bourgmestre in the sectors, and the use of the property of Tutsis, during which there was no discussion about the massacres, is necessarily indicative of Ndahimana’s alleged genocidal intent."510
507 Trial Judgement, para. 5
508 The Appeals Chamber notes that the Prosecution alleges th is form of joint criminal enterprise. See Prosecution Appeal Brief, para. 28.
509 See Prosecution Appeal Brief, para. 33, referring to Witness KR3, T. 25 January 2011 p. 29 (closed session). It is, for instance, particularly unclear from Witness KR3’s testimony whether the discussion on the use of the property of Tutsis concerned the property of Tutsi survivors or those who had been killed. See Witness KR3, T. 25 January 2011 pp. 29, 30 (closed session). As regards Ndahimana’s argument that the allegation was not pleaded in the Indictment, the Appeals Chamber clarifies that the Prosecution is not required to plead the evidence by which it seeks to prove the material allegations in the indictment.See, e.g., Nahimana et al. Appeal Judgement, para. 322; Ntagerura et al. Appeal Judgement, para. 21; Kupreškić et al. Appeal Judgement, para. 88
510 See Witness KR3, T. 25 January 2011 pp. 29, 30 (closed session).
M.3.1. The perpetrator meant to engage in the conduct;
A. Evidentiary comment
This requirement is likely to be similar or the same as a requirement for aiding and abetting under article 25(3)(c), although in other respects the two modes of liability are different.
M.P.9. Evidence of presence at and close involvement with the crime
A. Legal source/authority and evidence:
Prosecutor v. Aloys Simba, Case No. ICTR-2001-76-T, Judgement (TC), 13 December 2005, para. 406:
"406. The Chamber finds beyond reasonable doubt that Simba shared the common purpose of killing Tutsi at Murambi Technical School and Kaduha Parish based on his presence and specific actions at the two sites. He also distributed the means to implement the killings during an ongoing massacre at Murambi Technical School. In addition, after leaving the massacre at Murambi, he distributed guns and grenades to assailants at Kaduha Parish and urged them to "get rid of the filth"."
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-A, Judgement (AC), 25 February 2004, para. 134:
"134. The Appeals Chamber has already found that the Appellant knew that the seven Muslim men were to be killed; that he walked armed with the group from the place where they had parked the cars to the Drina River; that he pointed his gun at the seven Muslim men; and that he stood behind the Muslim men with his gun together with the other three offenders shortly before the shooting started. The Appeals Chamber believes that the only reasonable inference available on the totality of evidence is that the Appellant knew that his acts would assist the commission of the murders. The Appeals Chamber finds that in preventing the men from escaping on the way to the river bank and during the shooting, the Appellant’s actions had a "substantial effect upon the perpetration of the crime."226"
"226 - Tadic Appeals Judgement, para. 229."
Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, para. 126:
"126. The Trial Chamber found that the Appellant's "presence and continued interrogation of Witness A encouraged Accused B and substantially contributed to the criminal acts committed by him".176 As the Trial Chamber found that the Appellant was not only present in the Pantry, but that he acted and continued to interrogate Witness A therein, it is not necessary to consider the issue of whether mere or knowing presence constitutes aiding and abetting.177"
"176 Judgement, para. 273.
177 Ibid., para. 266."
Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 274
"274. On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7(1) and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B. He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute."
B. Evidentiary comment:
Although in the above cases (Vasiljević and Furundžija) the Tribunal was not explicit in why it had been willing to infer that the accused had knowledge that his acts contributed to the crime being committed, it seems reasonable to conclude that the grounds were, in both cases, that the accused was present during the crime being committed, so knew about it, and his contribution was so direct and obvious (shooting, beating, interrogating etc) that there was no way he could not have known that it contributed to the crime.
M.P.10. Evidence of position of authority
A. Legal source/authority and evidence:
Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 JDecember 2008, para. 409:
"409. Finally, given the influence which the Accused’s position of authority yielded,768 the Chamber considers that his arrival at the site with the assailants, his speech to the assailants, and his presence when the attack commenced, would have demonstrated support for the attack and thus, amounted to a form of encouragement to the assailants. Indeed, the applause that followed the Accused’s speech, and the immediate commencement of the attack after the speeches, demonstrates the significant effect which the Accused, and the other speakers, had on the assailants’ conduct. Accordingly, the Chamber finds that the Accused significantly contributed to the execution of the joint criminal purpose to kill Tutsi at Kesho Hill by encouraging assailants to attack."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004, para.137:
"137. As has been found above, it was reasonable for the Trial Chamber to conclude that, at least from 15 July 1995, Radislav Krstic had knowledge of the genocidal intent of some of the Members of the VRS Main Staff. Radislav Krstic was aware that the Main Staff had insufficient resources of its own to carry out the executions and that, without the use of Drina Corps resources, the Main Staff would not have been able to implement its genocidal plan. Krstic knew that by allowing Drina Corps resources to be used he was making a substantial contribution to the execution of the Bosnian Muslim prisoners. Although the evidence suggests that Radislav Krstic was not a supporter of that plan, as Commander of the Drina Corps he permitted the Main Staff to call upon Drina Corps resources and to employ those resources. The criminal liability of Krstic is therefore more properly expressed as that of an aider and abettor to genocide, and not as that of a perpetrator.226 This charge is fairly encompassed by the indictment, which alleged that Radislav Krstic aided and abetted in the planning, preparation or execution of genocide against the Bosnian Muslims in Srebrenica.227"
"226. See Krnojelac Appeal Judgement, para. 52; Vasiljevic Appeal Judgement, para. 102.
227. Indictment, paras. 18, 23."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 46 – 47:
"46. Krnojelac submits that the Trial Chamber did not establish unequivocally that he knew that, by his acts or omissions, he was significantly contributing to the commission of the crime of imprisonment by its perpetrators and that they were acting in pursuance of a discriminatory objective.63
47. First of all, the Appeals Chamber notes that the Trial Chamber concluded that Krnojelac knew that his acts and omissions were contributing to the system of unlawful imprisonment in place at the KP Dom.64 It also observes that the Trial Chamber found that Krnojelac had voluntarily accepted the position of KP Dom warden in full awareness that non-Serb civilians were being illegally detained there because of their ethnicity. The Trial Chamber stated that when he first arrived at the KP Dom, Krnojelac asked who was being detained and why, and the response he was given was that the prisoners were Muslims and were being detained for that reason. It went on to state that Krnojelac knew that none of the procedures in place for legally detained persons was ever followed at the KP Dom.65 The Appeals Chamber points out that the Trial Chamber is, in principle, better placed to determine the probative value of the evidence presented at trial.66 Here, Krnojelac does not try to demonstrate that the findings of fact at issue were unreasonable and, for this reason, the Appeals Chamber dismisses the arguments put forward."
"63. Defence Brief, para. 122.
64. Ibid.
65. Ibid., para. 100.
66. Tadic Appeals Judgement, para. 64. See also Musema Appeals Judgement, para. and Kunarac Appeals Judgement, para. 39."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 171, 316:
"171. The Prosecution also alleges that the Accused incurred criminal responsibility for aiding and abetting the imposition of the inhumane conditions constituting inhumane acts and cruel treatment of the non-Serb detainees at the KP Dom pursuant to Article 7(1) of the Statute.528 To establish the Accused’s responsibility on this basis, the Prosecution must establish that he was aware of the intent of the principal offenders, guards and military authorities, and that he carried out acts which rendered a substantial contribution to the commission of the intended crime by the principal offenders. The Trial Chamber is satisfied that the Accused was aware of the intent of the principal offenders and that he was aware that his failure to take any action as warden in relation to this knowledge contributed in a substantial way to the continued maintenance of these conditions constituting inhumane acts and cruel treatment by the principal offenders by giving encouragement to the principal offenders to maintain these living conditions. The Trial Chamber thus finds that the Accused incurred individual criminal responsibility pursuant to Article 7(1) of the Tribunal’s Statute by aiding and abetting the maintenance of living conditions at the KP Dom constituting inhumane acts and cruel treatment during the period in which he was warden."
"528 - See pars 88-90, supra."
"316. With respect to aiding and abetting liability pursuant to Article 7(1), the Trial Chamber is satisfied that the Accused knew of the beatings and that, by failing to take any appropriate measures which, as the warden, he was obliged to adopt, he encouraged these acts, at least in respect of his subordinates. The Trial Chamber is satisfied therefore that the Accused’s liability for aiding and abetting the beatings pursuant to Article 7(1) has been established. […]"
B. Evidentiary comment:
In its decisions in aiding and abetting, the ICTY has been willing to infer knowledge on the part of an accused that their actions contributed to a crime from their position of authority and knowledge of the crimes being committed. Although not expressly enunciated, the approach seems to be that it necessarily follows from a person’s position of authority that he or she knows that failing to take action to prevent crimes committed by subordinates allows the crimes to occur and therefore contributes to them.
