Table of contents:
M.1.1. A principal crime was committed or attempted.
M.P.2. Evidence that the crime which the suspect is said to have aided or abetted was attempted.
M.1.2. A principal crime was committed by a person or persons other than the perpetrator.
M.P.4. Evidence of ethnic cleasing.
M.P.5. Evidence of sexual violence.
Element:
M.1.1. A principal crime was committed or attempted.
General evidentiary comment:
The Rome Statute refers both to the aiding and abetting of the commission and to the "attempted commission" of the principal crime. Eser takes the position that "preparatory contributions, through determined to enable the commission of a crime, remain unpunishable if the intended principal crime is not carried out […]. If, however, the principal crime reaches at least the stage of an attempt, it does not matter at what time and place during the preparation and performance of the crime the assistance was rendered. Although in this respect the ICTY and ICTR Statutes are clearer by explicitly speaking of aiding and abetting ‘in the planning, preparation and execution’ of a crime, (Arts. 7 and 6(1) of the ICTY and ICTR Statutes, respectively) there is no reason why the assistance in certain stages of a crime should be excluded from responsibility here either.[…]". (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p.798).
A. Legal source/authority and evidence:
The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement (TC), 20 December 2012, para. 1339-1340:
1339. The Chamber has found that on 7 April 1994, Ngirabatware encouraged the Interahamwe at the Bruxelles and Gitsimbi/Cotagirwa roadblocks to kill Tutsis, that he distributed weapons to these Interahamwe, and that the Interahamwe used at least some of these weapons during the attacks and killings of Tutsis in Nyamyumba commune. Given this chain of events, the Chamber finds beyond reasonable doubt that Ngirabatware prompted these Interahamwe to attack and kill Tutsis, and that his acts—taken both individually and cumulatively—assisted and encouraged these attacks and killings of Tutsis. As noted above, the Chamber has already found that Ngirabatware’s actions on this day substantially contributed to the attacks and killings of Tutsis in Nyamyumba commune.
1340. This chain of events, as well as the totality of the evidence adduced in this case, leaves the Chamber with no doubt that these Interahamwe attacked and killed Tutsis in Nyamyumba commune with the requisite intent to destroy, in whole or in part, the Tutsi ethnic group as such, and that Ngirabatware knew of the principal perpetrators’ specific intent.
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 271:
"271. An accused will incur individual criminal responsibility for aiding and abetting a crime under Article 7(1) where it is demonstrated that the accused carried out an act that consisted of practical assistance, encouragement or moral support to the principal offender of the crime.722 The acts of the principal offender that the accused is alleged to have aided and abetted must be established.723 The act of assistance need not have caused the act of the principal offender, but it must have had a substantial effect on the commission of the crime by the principal offender.724 The assistance may consist of an act or omission, and it may occur before, during, or after the act of the principal offender.725 An individual’s position of superior authority does not suffice to conclude from his mere presence at the scene of the crime that he encouraged or supported the crime. However, the presence of a superior can be perceived as an important indicium of encouragement or support.726 An accused may be convicted for having aided and abetted a crime which requires specific intent even where the principal offender has not been tried or identified.727"
"722. Tadic Appeal Judgement , para. 229; Aleksovski Appeal Judgement, paras 163-164; Celebici Appeal Judgement, para. 352; Furundzija Trial Judgement, para. 235, para. 249; Vasiljevic Trial Judgement, paras 70-71; Vasiljevic Appeal Judgement , para. 102; NaletilicTrial Judgement, para. 63; Simic Trial Judgement , para. 161.
723. Aleksovski Appeal Judgement , para. 165. The Appeals Chamber held that the principal offender may not even be aware of the accomplice’s contribution: Tadic Appeal Judgement, para. 229 .
724. Vasiljevic Appeal Judgement , para. 102; Furundzija Trial Judgement paras 223, 224, 249; Aleksovski Trial Judgement, para. 61; Kunarac Trial Judgement, para. 391; Kordic Trial Judgement, para. 399, Vasiljevic Trial Judgement, para. 70.
725. Blaskic Appeal Judgement , para. 48; Kunarac Trial Judgement, para. 391; Blaskic Trial Judgement , para. 285; Naletilic Trial Judgement, para. 63; Simic Trial Judgement , para. 162; Kvocka Trial Judgement, para. 256.
726. Aleksovski Trial Judgement , para. 65. The Akayesu Trial Chamber found a mayor guilty of abetting by considering his passive presence next to the scene of the crime in connection with his prior encouraging behaviour: Akayesu Trial Judgement, para. 693.
727. Krstic Appeal Judgement , para. 143"
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 87:
"87. Before even ruling on the level of intention required, the Trial Chamber must first verify whether an act of genocide has been committed as the accused cannot be found guilty of having aided and abetted in a crime of genocide unless that crime has been established."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 para. 473:
"473. Thus, Article 6(1) covers various stages of the commission of a crime, ranging from its initial planning to its execution, through its organization. However, the principle of individual criminal responsibility as provided for in Article 6(1) implies that the planning or preparation of the crime actually leads to its commission. Indeed, the principle of individual criminal responsibility for an attempt to commit a crime obtained only in case of genocide 80. Conversely, this would mean that with respect to any other form of criminal participation and, in particular, those referred to in Article 6(1), the perpetrator would incur criminal responsibility only if the offence were completed."
"80. See Virginia Morris and Michael P. Scharf, Ibid., p.235."
M.P.2. Evidence that the crime which the suspect is said to have aided or abetted was attempted.
A. Evidentiary comment:
The Rome Statute refers both to the aiding and abetting of the commission and to the "attempted commission" of the principal crime. Eser takes the position that "preparatory contributions, through determined to enable the commission of a crime, remain unpunishable if the intended principal crime is not carried out (as to the question of attempted complicity, cf. infra, VI. E). If, however, the principal crime reaches at least the stage of an attempt, it does not matter at what time and place during the preparation and performance of the crime the assistance was rendered. Although in this respect the ICTY and ICTR Statutes are clearer by explicitly speaking of aiding and abetting ‘in the planning, preparation and execution’ of a crime, (Arts. 7 and 6(1) of the ICTY and ICTR Statutes, respectively) there is no reason why the assistance in certain stages of a crime should be excluded from responsibility here either.[…]". (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p.798).
M.1.2. A principal crime was committed by a person or persons other than the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 267:
"267. In order to establish individual criminal responsibility for planning, instigating, ordering and otherwise aiding and abetting in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the Statute, proof is required that the crime in question has actually been committed by the principal offender(s).705"
"705. For ‘planning’, see Akayesu Trial Judgement, para. 473; Blaskic Trial Judgement, para. 278; Kordic Trial Judgement, para. 386. For ‘instigating’, see Akayesu Trial Judgement , para. 482; Blaskic Trial Judgement, para. 280; Krstic Trial Judgement , para. 601; Kordic Trial Judgement, para. 387. For ‘ordering’, implicitly , see Stakic Trial Judgement, para. 445. For ‘aiding and abetting’, implicitly , see Tadic Appeal Judgement, para. 229; Aleksovski Appeal Judgement , para. 164; Celebici Appeal Judgement, para. 352; Furundzija Trial Judgement, paras 235, 249; Vasiljevic Trial Judgement, para. 70; Naletili c Trial Judgement, para. 63; Simic Trial Judgement, para. 161."
"2065. Without citation to the record or prior findings, the Trial Chamber concluded that “Ntahobali, Interahamwe and soldiers killed the abducted Tutsi refugees in the woods near the EER school complex.”4813 Earlier in its deliberations, however, the Trial Chamber specified that Witness RE’s testimony that refugees were taken to a nearby forest to be killed was corroborated by Witnesses TG, QY, and TA as well as Witness SJ’s testimony that “she hid from the Interahamwe in the woods where she came across the bloated and decapitated bodies of persons who had been killed.”4814 Furthermore, in a section entitled “Killings at the EER” the Trial Chamber acknowledged that no Prosecution witness observed the killing of abducted refugees but recalled the evidence of Witnesses RE and SJ as follows:
Witness RE believed the men and boys that the Interahamwe took to a nearby forest had been executed because they never came back. While she did not personally see any killings of abducted refugees, she learned they had been killed with bludgeons. Witness RE also testified that some people who managed to escape and returned to the EER informed the others that those taken away had been killed with clubs and machetes and that this had been done while they were naked.
Witness SJ also testified that persons taken from the EER compound were killed in the nearby forest. While Witness SJ also did not personally see the refugees being killed, she testified that while seeking respite from the conditions at the EER in the woods, they saw skulls in addition to a hole that had been dug; in these narrow holes they sometimes saw bodies with bloated stomachs or that were decapitated.4815
The Trial Chamber found the evidence of Witnesses RE and SJ “to be mutually consistent” and determined “that the only reasonable conclusion available from the evidence is that the refugees abducted from the EER were killed in the nearby woods.4816
4813. Trial Judgement, para. 3965.
4814. See Trial Judgement, para. 3944.
4815. Trial Judgement, paras. 3956, 3957 (internal references omitted).
4816. See Trial Judgement, para. 3958. The Trial Chamber also accepted “the hearsay evidence of Witness RE that the abducted refugees were killed with clubs and machetes while they were naked, and the direct evidence of Witness SJ that some bodies were decapitated.” See idem.
2066. Ntahobali argues that the Trial Chamber erred in finding that the accounts of Witnesses TG, QY, SJ, and TA corroborated each other.4817 He contends that Witness TG did not testify about killings of refugees at the EER but rather about events at a certain roadblock and recounted hearing screams of the victims being shot, while Witness RE testified that she did not hear any gunshots.4818 Ntahobali also contrasts Witness SJ’s testimony about hiding from the Interahamwe in the forest near the EER with the testimony of Witness RE that no one could go into the forest and the Trial Chamber’s finding that the killings occurred there.4819
4817. Ntahobali Appeal Brief, para. 540.
4818. Ntahobali Appeal Brief, para. 540, referring to Witness TG, T. 30 March 2004 pp. 69-71, Witness RE, T. 24 February 2003 pp. 12, 13, T. 26 February 2003 pp. 12, 13. See also ibid., para. 509.
4819. Ntahobali Appeal Brief, paras. 538, 569, referring to Trial Judgement, para. 3958, Witness SJ, T. 29 May 2002 pp. 110-112, Witness RE, T. 26 February 2003 pp. 15-18. See also ibid., para. 538. Ntahobali also argues that Witness SJ’s evidence is inconsistent with other accounts because she was the only witness to testify that “soldiers were present for three full days”. See ibid., para. 566.
2067. The Prosecution did not specifically respond to these arguments.
2068. The Appeals Chamber considers that Ntahobali does not demonstrate that a reasonable trier of fact could not have concluded that Witness RE’s evidence that the refugees were taken to the nearby forest to be killed was corroborated by that of Witness TG since the latter witness testified that he observed people taken from a certain roadblock to the primary school buildings and killed in the forest near there.4820 Likewise, the discrepancy as to gunshots and screams of the victims merely indicates that different people in different vantage points saw and heard different things and is not material when viewed in the context of the fundamental consistency of the witnesses’ accounts that refugees were killed near the EER.
4820. Trial Judgement, para. 3865, referring to Witness TG, T. 30 March 2004 p. 70.
2069. The Appeals Chamber further observes that a review of the relevant evidence reflects that Witness RE did not testify that the refugees could not go into the woods, but instead that the refugees did not go into the woods near the EER since going there would amount to putting their lives at risk as “[e]veryone who had to be killed was taken to that small woods.”4821 While Witness RE’s testimony appears to suggest that refugees did not go into the woods adjacent to the EER as it was dangerous, in contrast with Witness SJ’s claim that she hid there from Interahamwe, it is nevertheless not incompatible with Witness SJ’s account of coming across corpses there.4822 It similarly accords with the Trial Chamber’s conclusion that testimonial evidence, including that ofWitness SJ, indicates that the refugees abducted from the EER were taken to these woods to be killed.4823
4821. See Witness RE, T. 26 February 2003 p. 17.
4822. See Trial Judgement, para. 3944; Witness SJ, T. 29 May 2002 pp. 110-112.
4823. See Trial Judgement, paras. 3956-3958. Moreover, the Appeals Chamber concludes that, in light of consistent evidence of attacks occurring at the EER as testified to by Witness SJ and other Prosecution witnesses, Ntahobali does not demonstrate how Witness SJ’s evidence regarding the presence of soldiers for “three full days” is necessarily incompatible with other evidence on the record.
2070. Accordingly, the Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in its assessment of the evidence relating to the killings of the refugees taken from the EER."
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-T, Judgement (TC), 10 December 1998, paras. 200-202:
"200. In the British case of Schonfeld,222 four of the ten accused were found guilty of being "concerned in the killing of" three Allied airmen, who had been found hiding in the home of a member of the Dutch resistance. All four claimed that their purpose in visiting the scene had been the investigation and arrest of the Allied airmen. One admitted to shooting the three airmen but claimed it was in self- defence; he was found guilty and sentenced to death. The roles of the three others were less direct. One drove a car to the scene and was the first to enter the house. Another had obtained the original information, searched a different house for the airmen earlier and claimed to have stood guard at the back entrance to the house along with the fourth convicted person. All except one denied having fired any shots themselves.
201. The court did not make clear the grounds on which it found these three to have been "concerned in the killing".223 However, the Advocate General, citing the position in English law, outlined the role of an accessory who is not present at the scene but procures, counsels, commands or abets another to commit the offence, and that of an aider and abettor, either of which could have formed the basis of the court's decision. In doing so he gave an example of how an individual may participate without giving tangible assistance:
202. Again, in giving "additional confidence to his companions" the defendant facilitates the commission of the crime, and it is this which constitutes the actus reus of the offence."
"222. At p. 64.
223. The prosecutor referred to Regulation 8 (ii) of the Royal Warrant concerning units or groups of men discussed above, and this may have been taken into
consideration by the court. In his reference to English substantive law on complicity, the Advocate General included the doctrine of "common design", whereby if a group sets out to commit a crime, all are equally guilty of the act committed by one of them in the pursuance of that criminal goal whether or not they materially contribute to the execution of the crime.
224. Schonfeld, p. 70. A similar passage is to be found in another British case, the Trial of Werner Rohde and Eight Others, British Military Court,
Wuppertal, 29th May-1st June 1946, Vol. V, Law Reports, p. 56."
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 685:
"685. In the Trial of Otto Sandrock and Three Others ("Almelo case")215, the defendants were charged with the commission of a war crime for killing a prisoner of war and a Dutch civilian. This trial, which was conducted by the British Military Court, invoked Regulation 8(ii) of the Royal Warrant of 14 June 1945 as amended by Royal Warrant of 4 August 1945, which provided:
The Judge-Advocate ruled that each of the defendants knew that they were going to the woods for the purpose of killing the victims and that "[i]f people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law."216 Based in part on this knowledge, the court found all concerned in each shooting guilty, including the one that stayed in the car to prevent strangers from disturbing the two who were engaged in killing the victims; presence, knowledge and intent to assist was sufficient to establish guilt."
"215. Trial of Otto Sandrock and Three Others, Vol. I Law Reports 35, 43 (1947).
216. Id., 43."
A. Legal source/authority and evidence:
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 684:
"684. In another case focusing on poison gas, Robert Mulka, a camp commander at Auschwitz, was convicted of being an accessory in the murder of approximately 750 persons in the Auschwitz Trials before a German court213. This finding was based on the determination that he was involved in procuring Zyklon B gas, constructing gas ovens, arranging for trucks to transport inmates to the gas chambers, and alerting the camp bureaucracy as to the imminent arrival of transports. In this same trial, Karl Hocker, who succeeded Robert Mulka as adjutant camp commander, was convicted of complicity in joint murder by receiving and passing on teletypes detailing the imminent arrival of Hungarian prisoners to the camp, who were later killed there214."
"213. Vol. II War Crimes Reports 418.
214. Id., 419."
M.P.4. Evidence of ethnic cleasing.
A. Legal source/authority and evidence:
Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para 803:
"803. Vlatko Kupreskic helped prepare and supported the attack carried out by the other accused, the HVO and Military Police, by unloading weapons in his store and by agreeing to the use of his house as a strategic point and staging area for the attacking troops. His role is thus not quite as prominent as that of the other accused, which is why the Trial Chamber finds that he merely supported the actions of the others, conduct which must be subsumed under aiding and abetting and not under co-perpetration. The accused had the requisite mens rea, as he was aware that his actions would substantially and effectively assist the attackers in their activities, that he would help them in carrying out their mission of cleansing Ahmici of its Muslim inhabitants. He also knew that the attack would not be a battle between soldiers, but that the Muslim civilians of his own village would be targeted ."
M.P.5. Evidence of sexual violence.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001 para. 670:
"670. The Trial Chamber is satisfied that, on 2 August 1992, Dragoljub Kunarac went to Partizan Sports Hall where he took out FWS-75, FWS-87, FWS-50 and D.B. and drove them to the house in Ulica Osmana Dikica no 16, where some women who had been taken out of the Kalinovik school had already arrived. The Trial Chamber is also satisfied that Kunarac took these women to this house in the knowledge that they would be raped by soldiers during the night. The Trial Chamber finds that Kunarac took FWS -87 to one of the rooms of the house and forced her to have sexual intercourse in the knowledge that she did not consent. The Trial Chamber also finds that, on that occasion, FWS-75 and FWS-50 were repeatedly raped by other soldiers while Kunarac raped FWS-87. The Trial Chamber further finds that FWS-87 was also raped by other soldiers that same night. The fact that Kunarac took the girls to the house and left them to his men in the knowledge that they would rape them constituted an act of assistance which had a substantial effect on the acts of torture and rape later committed by his men. He therefore aided and abetted in that torture and rape."
Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 273, 274:
"273. The position of the accused has already been discussed. He did not personally rape Witness A, nor can he be considered, under the circumstances of this case, to be a co- perpetrator. The accused's presence and continued interrogation of Witness A encouraged Accused B and substantially contributed to the criminal acts committed by him.
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."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 paras. 452, 693:
"452. On the basis of the evidence set forth herein, the Chamber finds beyond a reasonable doubt that the Accused had reason to know and in fact knew that sexual violence was taking place on or near the premises of the bureau communal, and that women were being taken away from the bureau communal and sexually violated. There is no evidence that the Accused took any measures to prevent acts of sexual violence or to punish the perpetrators of sexual violence. In fact there is evidence that the Accused ordered, instigated and otherwise aided and abetted sexual violence. The Accused watched two Interahamwe drag a woman to be raped between the bureau communal and the cultural center. The two commune policemen in front of his office witnessed the rape but did nothing to prevent it. On the two occasions Witness JJ was brought to the cultural center of the bureau communal to be raped, she and the group of girls and women with her were taken past the Accused, on the way. On the first occasion he was looking at them, and on the second occasion he was standing at the entrance to the cultural center. On this second occasion, he said, "Never ask me again what a Tutsi woman tastes like." Witness JJ described the Accused in making these statements as "talking as if someone were encouraging a player." More generally she stated that the Accused was the one "supervising" the acts of rape. When Witness OO and two other girls were apprehended by Interahamwe in flight from the bureau communal, the Interahamwe went to the Accused and told him that they were taking the girls away to sleep with them. The Accused said "take them." The Accused told the Interahamwe to undress Chantal and march her around. He was laughing and happy to be watching and afterwards told the Interahamwe to take her away and said "you should first of all make sure that you sleep with this girl." The Chamber considers this statement as evidence that the Accused ordered and instigated sexual violence, although insufficient evidence was presented to establish beyond a reasonable doubt that Chantal was in fact raped."
"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:
M.P.6. Evidence of inhuman treatment
A. Legal source/authority and evidence:
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."
"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. […]"
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 842:
"842. As has been noted above, Esad Landzo admits that he took Simo Jovanovic out of Hangar 6 on the relevant evening, but denied that he joined the others in beating him. However, this version of events is not convincing. All of the witnesses testified that Mr. Landzo had taken Mr. Jovanovic out of the Hangar on previous occasions, during which he was also mistreated by other guards who knew him from his home village. It appears the Mr. Landzo did not report these incidents to the relevant persons in the prison-camp. Furthermore, there is witness testimony that Mr. Landzo himself had, on occasion, beaten the deceased inside the Hangar. In addition, on the day in question, at the very least, Mr. Landzo must have known why the other guards wished Simo Jovanovic called from the Hangar and he willingly lent his hand to the assailants. Therefore, even if his explanation that he did not personally hit the deceased were to be accepted, Esad Landzo cannot absolve himself of responsibility for his death as he clearly, at the very least, was in the position of facilitating the perpetration of the offence. As has been previously discussed individual criminal responsibility arises where the acts of the accused contribute to, or have an effect on, the commission of the crime and these acts are performed in the knowledge that they will assist the principal in the commission of the criminal act. Mr. Landzo himself stated that he had been posted outside of the Hangar to guard the detainees therein and there can be little doubt that he was aware of the intentions of Mr. Jovanovic’s assailants and that, without his help, they could not have laid their hands on said victim."
"528 - See pars 88-90, supra."
