CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Arts. 25 and 28 Modes of liability » Complicity » M.3. The perpetrator aided, abetted or otherwise assisted in the commission or attempt of the crime.

Element:

M.3. The perpetrator aided, abetted or otherwise assisted in the commission or attempt of the crime.

A. Evidentiary comment:

According to Eser, "[i]n contrast to the usual language of ‘aiding and abetting’, used in the ICTY and ICTR Statutes, (in Arts. 7 and 6(1) of the ICTY and ICTR Statutes, respectively ‘otherwise aiding and abetting’ comes after ‘planning, instigating, ordering and committing’; cf. supra V.B.3) the Rome Statute speaks of a person who ‘aids, abets or otherwise assists’ in the attempt or accomplishment of a crime, including ‘providing the means for its commission’. This wording indicates that, first aiding and abetting are no more an indistinguishable unity but that each of them has its own meaning, secondly, that aiding and abetting are just two ways of other possible forms of ‘assistance’, the latter thus serving as a sort of umbrella term, and thirdly, that ‘providing the means’ for the commission of a crime is merely a special example of assistance." (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p. 798).

The Ad Hoc Tribunals jurisprudence established that participation through aiding, and abetting can take place before, during and after the commission of the crime. In Aleksovski (Judgement, para. 62), it was held that: "[p]articipation may occur before, during or after the act is committed. It can, for example, consist of providing the means to commit the crime or promising to perform certain acts once the crime has been committed, that is, behaviour which may in fact clearly constitute instigation or abetment of the perpetrators of the crime. For that reason, as stated by the Trial Chamber seized of the Tadic case, "the act contributing to the commission and the act of commission itself can be geographically and temporally distanced". (Tadic, para. 687, p. 268).". However, there is uncertainty on whether participation can take place after the commission under the ICC Statute. Indeed, Werle points out that "the ICC Statute does not expressly determine that abetting can lead to liability even after completion of the crime. A footnote to Art. 23 of the Draft ICC Statute (1998) states: "This presumption [that successive assistance can be enough for liability] was questioned in the context of the ICC. If aiding, etc. ex post facto were deemed necessary to be criminalized, an explicit provision would be needed."(Werle, Principles of International Criminal Law, p. 126, fn 213).

Since ‘aiding, abetting and assisting’ are meant to cover many different means of contributing to a crime, it seemed necessary for the tribunals to exclude liability for remote involvement. The 1996 Draft Code of Crimes requires that that aiding and abetting be "direct and substantial" (Report of the ILC (1996), p. 24). The same reasoning was applied in Tadic, where "direct and substantial" was defined as: "[…] a contribution that in fact has an effect on the commission of the crime." (Tadic Trial Judgment, ICTY, para. 688). In the Furundzija judgment, the Tribunal departed slightly from that approach, stating that the assistance need not be tangible, as moral support or encouragement would be enough (Furundzija, Trial Judgment, para. 201). Furthermore, the tribunal held that: "[t]his clearly requires that the act of the accomplice has at least a substantial effect on the principal act." (Furundzija, Trial Judgment, para. 223). Following this meant that "having a role in a system without influence would not be enough to attract criminal responsibility" (Furundzija, Trial Judgment, para. 233). In Kupreskic (Appeal Judgment, para. 277), the tribunal refused to find liability because the involvement was to remote, finding that: "the probative value of this vague testimony as evidence of an act specifically directed to assist, encourage or lend moral support to the perpetration of persecutory acts is very low indeed. This is particularly so considering that an act of aiding and abetting must have had a substantial effect on the commission of persecutory acts. There was no evidence that the "weapons", whatever they were, were ever used during the Ahmici attack. Also, the length of time between Witness T’s observations and the attack on Ahmici the following April (some six months), diminishes the likelihood that the weapons were intended to be used for attacking the local Muslim population. In sum, the Appeals Chamber finds that the Trial Chamber erred in using the evidence of Witness T that she saw Vlatko Kupreskic unloading weapons from his car in October 1992 in order to support an inference that he thereby assisted with the April 1993 attack on Ahmici." (Kupreskic Appeal Judgment, para. 277).

In sum, according to Kai Ambos, "aiding and abetting encompasses any assistance, whether physical or psychological, which, however, had a substantial effect on the commission of the main crime. In other words, the limiting element is the "substantial effect" requirement. Thus, the question arises when an effect is "substantial". This cannot be decided by an abstract formula but only on a case basis taking into account modern theories of attribution (See generally C. Roxin, STRAFRECHT., ALLGEMEINER TEIL 287 et seq. (Vol. I, 3^rd ed. 1997); G. Jakobs, STRAFRECHT, ALLGEMEINER TEIL. DIE GRUNDLAGEN UND DIE ZURECHNUNGSLEHRE 185 et seq. (2^nd ed. 1993). (Kai Ambos in Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, para. 18). Furthermore, "the act of assistance need not have caused the act of the principal, nor need it consist of one of the elements of the crime ultimately committed, but it must be shown to have had a ‘substantial effect’ on the commission of the crime by the principal offender." (Mettraux, International Crimes and the Ad Hoc Tribunals, p. 284).

M.3.1. The perpetrator aided the commission of the crime; OR

A. Legal source/authority and evidence:

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 42, 44, 51, 70, 73:

42. The Appeals Chamber observes that Perisic’s assistance to the VRS was remote from the relevant crimes of principal perpetrators. In particular, the Trial Chamber found that the VRS was independent from the VJ, and that the two armies were based in separate geographic regions. In addition, the Trial Chamber did not refer to any evidence that Perisic was physically present when relevant criminal acts were planned or committed. In these circumstances, the Appeals Chamber, Judge Liu dissenting, further considers that an explicit analysis of specific direction would have been required in order to establish the necessary link between the aid Perisic provided with the crimes committed by principal perpetrators.

44. The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. However, the Appeals Chamber recalls again that the Tadic Appeal Judgement indicated that specific direction involves finding a closer link between acts of an accused aider and abettor and crimes committed by principal perpetrators than is necessary to support convictions under JCE. The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.

51. The Appeals Chamber recalls that the SDC’s responsibility for adopting the policy of assisting the VRS does not, in itself, exempt Persic from individual criminal liability. The Appeals Chamber considers that, in view of the circumstances of this case, Perisic could still be found to have provided assistance specifically directed towards the VRS Crimes in Sarajevo and Srebrenica if: the policy he implemented involved providing assistance specifically linked to VRS crimes; he implemented a policy meant to aid the general VRS war effort in a manner that specifically directed assistance towards the VRS crimes; or, acting outside the scope of the SDC’s official policy, he provided assistance specifically directed towards VRS crimes.

70. The Appeals Chamber, Judge Liu dissenting, has clarified that, in view of the remoteness of Perisic’s actions from the crimes of the VRS, an explicit analysis of specific direction was required.

73. The Appeals Chamber, Judge Liu dissenting, recalls that specific direction is an element of the actus reus of aiding and abetting liability, and that in cases like this one, where an accused individual’s assistance is remote from the actions of principal perpetrators, specific direction must be explicitly established. After carefully reviewing the evidence on the record, the Appeals Chamber, Judge Liu dissenting, concludes that it has not been established beyond reasonable doubt that Perisic carried out "acts specifically directed to assist, encourage or lend moral support to the perpetration of [the] certain specific crime[s]" committed by the VRS. Accordingly, Perisic’s convictions for aiding and abetting must be reversed on the ground that not all the elements of aiding and abetting liability have been proved beyond reasonable doubt.

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 384:

"384. The terms "aiding" and "abetting" refer to distinct legal concepts. [637] The term "aiding" means assisting or helping another to commit a crime, and the term "abetting" means encouraging, advising, or instigating the commission of a crime. [638] However, the terms "aiding" and "abetting" are frequently employed together as a single broad legal concept, [639] as is the case in this Tribunal."

"[637]See Akayesu, Judgement, TC, para. 484.

[638] See generally Mewett and Manning on Criminal Law p.272 (3^rd ed. 1994); Black’s Law Dictionary p. 69 (7^th ed. 1999) (defining "aid and abet"), quoting Wharton’s Criminal Law § 29 (15^th ed. 1993). See, e.g., The Criminal Code, R.S.C. 1985, ch. C-46, § 21(b),(c) (Canada) (treating aiding and abetting separately)."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 para. 484:

"484. Article 6 (1) declares criminally responsible a person who "(...) or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 (...)". Aiding and abetting, which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto. The issue here is to whether the individual criminal responsibility provided for in Article 6(1) is incurred only where there was aiding and abetting at the same time. The Chamber is of the opinion that either aiding or abetting alone is sufficient to render the perpetrator criminally liable. In both instances, it is not necessary for the person aiding or abetting another to commit the offence to be present during the commission of the crime."

B. Evidentiary comment:

According to A. Eser "[i]f the ICTR defines aiding as "giving assistance to someone" whereas abetting would ‘involve facilitating the commission of an act by being sympathetic thereto’ (ICTR Trial Chamber Akayesu case, supra note 123, para. 484), aiding, perhaps not surprisingly, is practically identical with assisting, while abetting comes close to, if not being almost completely identifiable with, instigation (This is even more evident with the common definition of abetting in terms of ‘to command, procure, counsel, encourage, induce, or assist’ in Black’s Law Dictionary , supra note 116,5. See also B. Huber, ‘Alleinhandeln und Zusammenwirken aus englischer Sicht’ in Eser, Huber and Cornils, supra note 45, at 79, 84)." (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p. 799).

M.P.7. Evidence that the suspect drove a car to the scene.

M.P.8. Evidence that the suspect collected information and searched for the victim.

M.P.9. Evidence that the suspect remained at a convenient distance in order to favour an escape of the perpetrator.

M.P.10. Evidence that the suspect made himself or herself ready to come to assistance,

A. Legal source/authority and evidence:

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:

if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favour their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, he was, in contemplation of law, present, aiding and abetting.²²⁴

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."

M.P.11. Evidence that the suspect kept watch during the commission of the crime.

A. Legal source/authority and evidence:

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 656:

"656. A further incident involving Haradin Bala relates to the mistreatment of L04 which theChamber has found constituted cruel treatment.2233 L04 stated that Shala was told by Tamuli to untie L04. As established earlier, L04 was then blindfolded, taken out of the room and beaten by individuals L04 believed to be Tamuli and Qerqiz. Shala had an automatic weapon and was guarding the door. He, however, did not personally join in the beating of L04. The Chamber accepts the evidence of L04 on the circumstances of his mistreatment. It finds that Haradin Bala did not inflict physical suffering on L04. He did, however, provide practical assistance to the direct perpetrators of the offence of cruel treatment. He better ensured there was no prospect of L04 escaping from the beating, or of the beating being seen or disrupted by third persons. In the Chamber’s finding, Haradin Bala’s involvement had thus a "substantial effect on the commission" of the crime of cruel treatment. In the circumstances, Haradin Bala could not have been ignorant of the intentions of the direct perpetrators. He certainly knew that a crime was being committed. Nonetheless, he remained and so he facilitated its commission. He is therefore responsible for aiding the crime of cruel treatment in respect of L04."

Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 200-202:

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.

TPIY

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:

Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group, may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime . . .

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."

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 206:

206. In his statement pursuant to Rule 84 bis, his closing argument and his Final Brief, the Accused does not deny that crimes were committed in Vukovar, but asserts that he was not present at the crime scenes and that the SRS did not exist there. […]

M.P.12. Evidence that the perpetrator prevented the victims from escaping.

A. Legal source/authority and evidence:

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-TC, Judgement (TC), 22 June 2009, para. 392. But see Appeals Chamber’s findings, Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-A, Judgement (AC), 20 October 2010, paras. 113-114 (Below):

"392. The Chamber finds that the allegations at paragraph 9 of the Indictment have been proven beyond reasonable doubt. On Saturday, 23 April 1994, Kalimanzira went to the Gisagara marketplace where thousands of Tutsi refugees had gathered to escape the killings, lootings, and house burnings in their areas. On that occasion, sous-préfet Ntawukulilyayo instructed the refugees to move to Kabuye hill, promising them protection. Kalimanzira stood next to the sous-préfet, saying nothing. In this way, he showed his tacit approval, lending credibility and authority to the sous-préfet’s assurances of safety. That same day, he stopped 13 refugees leaving Kabuye cellule on the Gisagara-Kabuye road and instructed them to go to back to Kabuye hill, promising that nothing would happen to them. His behaviour at the Mukabuga roadblock earlier that day demonstrates that he knew the Tutsis at Kabuye hill were being attacked and that he intended for them to be killed. In these ways, he personally encouraged Tutsis to take refuge on the hill in order to facilitate their subsequent killings, a consequence which he was clearly aware of and motivated by."

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-A, Judgement (AC), 20 October 2010, paras. 113-114:

"113. The Appeals Chamber recalls its finding, Judge Pocar dissenting, that it was unsafe for the Trial Chamber to rely on Witness BWK’s uncorroborated identification evidence with respect to Kalimanzira.The Appeals Chamber, Judge Pocar dissenting, underscores that the partial corroboration noted by the Trial Chamber only suggests that Kalimanzira was in the general area and that a man called Gakeri escorted Tutsis to Kabuye hill, but does nothing to reliably support Witness BWK’s specific identification of Kalimanzira. The Appeals Chamber, Judge Pocar dissenting, therefore is not satisfied that Witness BWK’s testimony can be relied on to establish facts concerning Kalimanzira’s actions at the Kabuye-Gisagara road absent additional evidence. Given that Witness BWK’s testimony was the only direct evidence of the events that occurred at the Kabuye-Gisagara road on 23 April 1994, the Appeals Chamber, Judge Pocar dissenting, considers that the Trial Chamber’s findings regarding Kalimanzira’s actions there are unsafe.

114. For the foregoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants this subground of Kalimanzira’s appeal. The impact of this finding will be discussed below."

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."

M.P.13. Evidence that the suspect disarmament members of a specific group.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 367:

"367. The Trial Chamber is satisfied that the ARK Crisis Staff practically assisted the commission of crimes by the army, the police and paramilitary organisations by, inter alia, demanding the disarmament of non-Serbs through announcements and decisions setting deadlines concerning the surrender of weapons and providing for the eventual forceful confiscation of weapons. These announcements and decisions not only facilitated the Bosnian Serb armed take-over of individual municipalities but on many occasions were used as the pretext for such take-overs. The Trial Chamber has also found that the decisions of the ARK Crisis Staff can be attributed to the Accused."

M.P.14. Evidence that the perpetrator brought the victims to the perpetrator.

Prosecutor v. Siméon Nchamihigo, Case No. ICTR-01-63-T, Judgement (TC), 12 November 2008, para 353-354. But see Appeals Chamber’s findings, Prosecutor v. Siméon Nchamihigo, Case No.: ICTR-2001-63-A, Judgement (AC), 18 March 2010, para. 83 (Below):

"353. The Chamber found that Nchamihigo, having learnt that the three Tutsi girls were being given refuge in BRD’s house, removed them and took them to Gatandara roadblock so that they may be killed, declaring them to be Inkotanyi.

354. By his actions, Nchamihigo aided and abetted their killing. The Chamber is satisfied that he did this because they were Tutsi and in furtherance of his intention to destroy the Tutsi ethnic group in whole or in part, and that he did this as part of a widespread or systematic attack on the Tutsi civilian population. As such, the Chamber finds Nchamihigo guilty beyond reasonable doubt of Genocide and Murder as a Crime against Humanity for aiding and abetting the killing of Joséphine Mukashema, Hélène and Marie."

Prosecutor v. Siméon Nchamihigo, Case No.: ICTR-2001-63-A, Judgement (AC), 18 March 2010, para. 83:

"83. The Appeals Chamber, Judges Pocar and Liu dissenting, finds that the Trial Chamber committed multiple errors in convicting the Appellant for the killing of the three Tutsi girls. First, it erroneously rejected challenges to a key witness’s credibility, which were of particular concern considering that witness’s conviction for forgery. Second, it made an erroneous factual finding which was particularly prejudicial because it attributed incriminating statements to the Appellant which he did not in fact make. Finally, in setting out its conclusions regarding the Appellant’s actions, the Trial Chamber found that his guilt was the only reasonable inference, without providing adequate reasoning. Given the seriousness of these errors, the Appeals Chamber, Judges Pocar and Liu dissenting, quashes the Appellant’s convictions based on the killing of the three Tutsi girls. Accordingly, the Appeals Chamber need not address the Appellant’s remaining contentions under this ground of appeal."

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 607, 984:

"607. Based on the evidence of VG038, VG084 and Huso Kurspahic, the Trial Chamber finds by majority, Judge Robinson dissenting as to Sredoje Lukic’s participation in the transfer, that Sredoje Lukic was present during and participated in the transfer of the Koritnik group between Jusuf Memić’s house and Adem Omeragic’s house."

"984. The Trial Chamber finds that Sredoje Lukic’s acts and conduct during the incident contributed to the commission of the crimes of cruel treatment and inhumane acts against the survivors of the Pionirska street incident. He rendered practical assistance to the commission of these crimes when he was at Jusuf Memic’s house in the afternoon, visibly carrying arms, and, in particular, when he participated in the transfer of the Koritnik group to Adem Omeragic’s house during the night. Judge Robinson dissents with regard to Sredoje Lukic’s participation in the transfer."

M.P.14.1. Evidence that the suspect brought girls to a place where they would be raped.

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."

M.P.14.2. Evidence that the suspect brought the victim to a place where he would be beaten.

A. Legal source/authority and evidence:

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."

M.P.15. Evidence the perpetrator orderering the withdrawal of prison guards

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 621:

"621. In the circumstances, by his order for the withdrawal of the remaining JNA soldiers guarding the prisoners of war, Mile Mrk{i} in truth rendered substantial practical assistance to the TO and paramilitary forces at Ov~ara who were determined to have revenge on the prisoners. By withdrawing the JNA guards, he at once enabled the TO and paramilitary forces to have direct and unrestrained physical access to the prisoners of war. This substantially assisted them to commit the murders that followed, in that it had an immediate effect on their ability to perpetrate the murders. Further, by the removal of the restraint it encouraged the release of their emotions.[…]"

M.P.16. Evidence of the accused providing practical assistance

ICTY, The Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, Judgement (TC), 30 May 2013, para. 2360-2361:

"2360. In assessing whether this assistance had a substantial effect on the perpetration of the crimes, the Trial Chamber now turns to whether the Accused’s acts were specifically directed to assist the perpetration of the crimes of murder, deportation, forcible transfer, and persecution in Doboj and Bosanski Samac municipality. In this respect, the Trial Chamber considers that the Accused were not physically present together with the Unit during these two operations. As for organising the involvement of the Unit in the Bosanski Samac operation, the Trial Chamber recalls that Simatović visited the Unit at the Pajzoš camp in Ilok and briefed them on the upcoming operation in Bosanski Samac. In this respect, the Trial Chamber recalls that Simatović stated that the Unit’s objective was to secure Bosanski Samac and the surrounding Serbian villages, which would be a difficult task and that the chances to return alive were slim if they failed to succeed. The Trial Chamber also recalls the evidence indicating the military character of the training at the Unit camps, see chapter 6.9. As reviewed in chapter 6.9, the majority, Judge Picard dissenting, did not find that the Accused intended the forcible and permanent removal of non-Serbs from large areas of Croatia and Bosnia-Herzegovina. The Trial Chamber recalls the Appeals Chamber’s holding that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to the crimes of the principal perpetrators. The majority, Judge Picard dissenting, allows for the reasonable conclusion that the Accused’s assistance to the Bosanski Samac and Doboj operations and to the Unit generally was not specifically directed towards the commission of the crimes of murder, deportation, forcible transfer, or persecution. Rather, such assistance may have been directed towards establishing and maintaining Serb control over these areas. As such, the majority, Judge Picard dissenting, is unable to conclude that the assistance rendered to the Unit by the Accused aided and abetted the crimes in Doboj and Bosanski Samac.

2361. The Trial Chamber recalls its findings in chapters 6.3, 6.4, 6.5, 6.6, and 6.7 that the Unit was the only group directly subordinate to the Accused. The Trial Chamber also found that there were certain links, albeit looser when compared to the Unit, between the Accused and other groups, for example with the SAO Krajina Police or the SDG (see chapters 6.4 and 6.6). The Accused’s contributions vis-a-vis other groups were of a similar nature (including financing, supplying, organising involvement, supporting, and training). Furthermore, in none of the incidents where members of these other groups committed crimes, did the Accused play any more specific role in providing assistance. Moreover, all of the crimes were committed in the context of military operations. The majority, Judge Picard dissenting, recalls its findings on the Accused’s mens rea (see chapters 6.9 and 6.10) and its finding that the kind of assistance rendered to the Unit, the group most closely linked to the Accused, is insufficient to incur criminal responsibility as an aider and abettor. Therefore, for the reasons set out above, the majority, Judge Picard dissenting, is unable to conclude that the Accused aided and abetted crimes perpetrated by the SDG, the SAO Krajina Police, the Skorpions, or other groups."

Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 December 2008, para. 423:

M.3.2. "423. Additionally, the Chamber considers that the Accused’s instruction to Corporal Irandemba, to ensure that the men received food so that they could remain at the roadblock and continue with their duties, which was, to take Tutsi aside and kill them, would have had a substantial effect on the perpetration of the killings. Not only did his instruction have the effect of providing practical assistance to the killers, as food was delivered on another day from Camp Kigali, but it further demonstrated to Corporal Irandemba the Accused’s support for the killings, thereby encouraging even more the commission of the crimes."The perpetrator abetted the commission of the crime; OR

A. Legal source/authority and evidence:

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 658:

658. […]The Chamber accepts L12’s evidence, however, that Haradin Bala’s involvement in the incident was limited to bringing L12 to the perpetrators and being present while the beating was taking place. The Chamber finds that by bringing L12 to the barn and being present throughout the beating by others, Haradin Bala did contribute to the commission of the crime substantially enough to regard his participation as aiding the offence committed by the direct perpetrators. In the circumstances, Haradin Bala must have become aware, at least at the time of the beating, that the assailants were committing a crime and of their state of mind. Accordingly, he possessed the mens rea required for aiding and abetting […]."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 384:

[638] See Akayesu, Judgement, TC, para. 484.

[639]See generally Mewett and Manning on Criminal Law p.272 (3^rd ed. 1994); Black’s Law Dictionary p. 69 (7^th ed. 1999) (defining "aid and abet"), quoting Wharton’s Criminal Law § 29 (15^th ed. 1993). See, e.g., The Criminal Code, R.S.C. 1985, ch. C-46, § 21(b),(c) (Canada) (treating aiding and abetting separately)."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 253:

"253. The Akayesu Trial Chamber Judgement emphasized that aiding and abetting , "which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto."⁴³⁴

"⁴³⁴ - Akayesu Trial Chamber Judgement, para. 484."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 para. 484:

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, paras. 1651-1668, 1691-1693:

"1651. In light of the foregoing, the Appeals Chamber finds that in assessing the actus reus of aiding and abetting, the Trial Chamber was not required to determine whether Lazarevic’s acts were specifically directed to assist, encourage or lend moral support to the commission of the crimes by the VJ and thus dismisses Lazarevic’s arguments to the contrary."

"1652. Lazarevic challenges the Trial Chamber’s finding that he contributed to the implementation of joint operations conducted by the MUP and the VJ in the border area between Kosovo and Albania during the second half of 1998 by ordering the engagement of units in the sector of Slup/Sllup and Voksa/Voksh villages on 14 August 1998 and by monitoring the action which took place on 15 August 1998.^5435"

5435. Lazarevic’s Appeal Brief, paras 386, 398-400, referring, inter alia, to Trial Judgement, vol. 3, paras 802-803. Lazarevic further argues that the coordination and cooperation between the VJ and MUP in 1998 was legitimate and was approved by the higher command (Lazarevic’s Appeal Brief, paras 387-397, 401-403). See also Lazarevic’s Reply Brief, paras 118-120.

"1653. The Prosecution responds that Lazarevic’s arguments should be summarily dismissed since the alleged errors concern factual findings on which his conviction does not rely.⁵⁴³⁶"

5436. Prosecution’s Response Brief (Lazarevic), paras 240-241. 1654. The Appeals Chamber notes that Lazarevic was neither charged with nor convicted of crimes committed in Kosovo in 1998. Nor did the Trial Chamber rely on its factual findings on Lazarevic’s involvement in the Slup/Sllup and Voksa/Voksh operation in 1998 to find that he aided and abetted the commission of crimes by VJ members in Kosovo in 1999.⁵⁴³⁷ Lazarevic’s challenges thus pertain to factual findings that have no bearing on his conviction. The Appeals Chamber therefore dismisses sub-ground 3(a) of his appeal.

5437. See Trial Judgement, vol. 3, paras 922-927.

"1655. In concluding that Lazarevic voluntarily provided practical assistance, encouragement, and moral support to the VJ forces engaging in the forcible displacement of Kosovo Albanians, the Trial Chamber specifically considered Lazarevic’s involvement in joint operations of the MUP and the VJ in 1999.⁵⁴³⁸ In particular, the Trial Chamber found that two large-scale plans, Grom 3 and Grom 4, were prepared by the VJ at the beginning of 1999. ⁵⁴³⁹ The Trial Chamber further found that Lazarević implemented these plans by, inter alia, issuing the Grom 3 and Grom 4 orders on 7 February and 6 April 1999, respectively,⁵⁴⁴⁰ which sent the VJ into Kosovo.⁵⁴⁴¹ The Trial Chamber concluded that several joint operations were carried out in late March through the end of May 1999, pursuant to orders issued by the Pristina Corps Command.⁵⁴⁴² The Trial Chamber consequently found that: Lazarević significantly participated in the planning and execution of the joint operations conducted by the VJ, acting solely or in co-ordination with the MUP, on the ground in Kosovo from March to June 1999. His Grom 3 and 4 orders, and the Joint Command orders—which the Priština Corps drafted—sent the VJ into actions in Kosovo and provided the authorisation within the VJ chain of command for the VJ to operate in the crime sites where many of the forcible displacements of Kosovo Albanians were conducted.⁵⁴⁴³ The Trial Chamber further found that these acts: provided a substantial contribution to the commission of the crimes […] found to have been committed by VJ members […] as they provided assistance in terms of soldiers on the ground to carry out the acts, the organization and equipping of VJ units, and the provision of weaponry, including tanks, to assist these acts.⁵⁴⁴⁴"

5438. Trial Judgement, vol. 3, paras 822-829.

5439. Trial Judgement, vol. 3, paras 823, 826.

5440. Trial Judgement, vol. 3, paras 824, 826, referring to Vladimir Lazarević, 8 Nov 2007, T. 17905, Exh. 5D175.

5441. Trial Judgement, vol. 3, para. 925.

5442. Trial Judgement, vol. 3, paras 824-828. See also ibid., vol. 1, paras 1196-1200.

5443. Trial Judgement, vol. 3, para. 925.

5444. Trial Judgement, vol. 3, para. 926.

"1656. Lazarevic disputes the Trial Chamber’s finding that his actions were voluntary.⁵⁴⁴⁵ He contends that: (i) he only planned the activities of his subordinate units pursuant to directives and orders from the 3rd Army Command and the VJ General Staff; (ii) nothing in the orders he received indicated that their execution would aid and abet the commission of any crime; and (iii) his activities were directed to defence against the NATO bombing and the KLA.⁵⁴⁴⁶ Lazarevic further argues that it was unreasonable for the Trial Chamber to find that he assisted with the provision of weaponry because it is “legitimate and normal” for military units to be supplied with weaponry, including tanks, during a war, particularly when facing an opposing force with the might of NATO and the KLA.⁵⁴⁴⁷"

5445. Lazarevic’s Appeal Brief, para. 599, referring to Trial Judgement, vol. 3, para. 927.

5446. Lazarevic’s Appeal Brief, paras 444, 491, 572-573, 576; Lazarevic’s Reply Brief, para. 140.

5447. Lazarevic’s Appeal Brief, para. 598, referring to Trial Judgement, vol. 3, para. 926. 1657.

"1657. Lazarevic further argues that the Trial Chamber misinterpreted the Grom 3 and Grom 4 plans which were issued for the defence of the country – not aimed at the civilian population – and were planned at a higher level than the Pristina Corps. ⁵⁴⁴⁸ He also claims that the Trial Chamber misinterpreted the cooperation between the VJ and the MUP, arguing that: (i) the VJ planned operations only for its units, not for the MUP;⁵⁴⁴⁹ (ii) cooperation “was reduced to a level of individual contacts of lower ranking officers”;⁵⁴⁵⁰ and (iii) several joint operations were ordered in May 1999 by the Pristina Corps Command based on the orders for the re-subordination of the MUP forces to the VJ, but that such re-subordination did not occur.⁵⁴⁵¹"

5448. Lazarevic’s Appeal Brief, para. 453, referring to Trial Judgement, vol. 3, para. 826. See also Lazarevic’s Appeal Brief, paras 455-470. Lazarevic further submits that the Joint Command did not exist and did not represent any real command body, or at least that he was not aware of any such parallel command during the Kosovo conflict (ibid., para. 483).

5449. Lazarevic’s Appeal Brief, para. 454, referring to Trial Judgement, vol. 3, para. 827. See also Lazarevic’s Appeal Brief, para. 484.

5450. Lazarevic’s Appeal Brief, paras 485-486. See also Lazarevic’s Reply Brief, para. 125.

5451. Lazarevic’s Appeal Brief, paras 488-490, referring to Trial Judgement, vol. 1, para. 1203, ibid., vol. 3, para. 828.

"1658. Finally, Lazarevic challenges the Trial Chamber’s finding that, despite receiving information about crimes, such as murder, rape, looting, and robbery, allegedly committed by the MUP in the zone of responsibility of the VJ 37th Motorised Brigade in May 1999, Lazarevic continued to approve joint VJ and MUP operations, such as the attack on the village of Dubrava/Lisnaja on 25 May 1999, which involved the forcible displacement of Kosovo Albanians.⁵⁴⁵² He argues that the operation in Dubrava/Lisnaja was in the zone of the 243rd Motorised Brigade, while the crimes allegedly committed by the MUP occurred in the zone of responsibility of the 37th Motorised Brigade.⁵⁴⁵³ Lazarevic reiterates that he was duty-bound to approve the joint actions of the VJ and the MUP since Milocevic’s order concerning the resubordination of the MUP to the VJ was still in force and that he could not decline to authorise such actions without a specific order to that effect from his superior command.⁵⁴⁵⁴"

5452. Lazarevic’s Appeal Brief, para. 524, referring to Trial Judgement, vol. 3, para. 848.

5453. Lazarevic’s Appeal Brief, para. 524.

5454. Lazarevic’s Appeal Brief, paras 525, 569. See also ibid., para. 487. Lazarevic further notes that, having warned his superiors about the commission of offences by some members of the MUP one day prior to the operation in Dubrava/Lisnaja, he expected that the responsible MUP organs would investigate the allegations that he raised regarding the commission of crimes by some members of the MUP (ibid., para. 525. See also Lazarevic’s Reply Brief, para. 135). Lazarevic also contends that in any case, the events of 25 May 1999 concerned combat with the KLA and the Trial Chamber found that witness Vishi recommended the Kosovo Albanians to leave the village (Lazarevic’s Appeal Brief, para. 526, referring to Fadil Vishi, Exh. P2284, p. 4, Fadil Vishi, Exh. P2285, T. 4464-4466; Lazarevic’s Reply Brief, para. 135). The Appeals Chamber has already dismissed Lazarević’s arguments in this regard in an earlier part of this Judgement (see supra, sub-section VI.B.7.(a)(ii)).

"1659. The Prosecution responds that Lazarevic merely repeats arguments he made at trial or misrepresents the Trial Chamber’s factual findings.⁵⁴⁵⁵ It further submits that Lazarevic’s argument that he acted in defence against NATO and the KLA conflates jus ad bellum and jus in bello and that his conduct remains illegal under international humanitarian law.⁵⁴⁵⁶ The Prosecution submits that the defence of military necessity is not applicable in his case because the limited exceptions where this defence is allowed under international humanitarian law do not correspond to the facts of this case, and these exceptions were expressly considered by the Trial Chamber when stating the law on forcible displacement.⁵⁴⁵⁷ It also contends that Lazarevic’s argument that his actions were not voluntary because he was merely executing orders is unsubstantiated and that, in any case, the defence of superior orders does not apply before the Tribunal.⁵⁴⁵⁸"

5455. Prosecution’s Response Brief (Lazarevic), paras 265-267, 272-275.

5456. Prosecution’s Response Brief (Lazarevic), paras 334-335.

5457. Prosecution’s Response Brief (Lazarevic), paras 336-337.

5458. Prosecution’s Response Brief (Lazarevic), para. 338. 1660.

"The Prosecution further submits that Lazarevic’s attempt to isolate the crimes committed by the MUP from the joint operation he later ordered in Dubrava/Lisnaja ignores the Trial Chamber’s findings that the VJ and MUP forces cooperated in a campaign of violence aimed at displacing Kosovo Albanian civilians across the whole of Kosovo.⁵⁴⁵⁹ It further contends that Lazarevic’s submission that he lacked the authority to cease cooperation between the VJ and the MUP is unsubstantiated.⁵⁴⁶⁰"

5459. Prosecution’s Response Brief (Lazarevic), para. 303.

5460. Prosecution’s Response Brief (Lazarevic), para. 304.

"1661. The Appeals Chamber first turns to Lazarevic’s arguments that he planned the activities of his subordinate units pursuant to directives and orders of the 3rd Army and that he was duty-bound to approve the joint actions of the VJ and the MUP while re-subordination orders were in effect. The Appeals Chamber recalls that the fact that an accused acted pursuant to superior orders does not relieve him of criminal responsibility⁵⁴⁶¹ and that, even where a lawful order exists to conduct an operation, an accused may still incur criminal responsibility for crimes committed in the course of that operation.⁵⁴⁶² The fact that a higher level of military command directed Lazarevic to plan the operations of the Pristina Corps does not in itself preclude his responsibility for aiding and abetting the crimes of deportation and forcible transfer committed in the course of such operations. Accordingly, his argument that he was following orders and that his actions were thus not voluntary is inapposite and he has failed to show any error on the part of the Trial Chamber."

5461. Article 7(4) of the Statute. However, acting under superior orders might be considered in mitigation of sentence if the interests of justice so require (see ibid.).

5462. Boškoski and Tarčulovski Appeal Judgement, para. 51.

"1662. Lazarevic’s contention that his orders were issued in defence of the country against NATO and the KLA is likewise misguided. Whether the resort to the use of force is legitimate under international law is a question of jus ad bellum, which is distinct from whether the way in which that force was used was legal under international humanitarian law,⁵⁴⁶³ i.e. jus in bello. The rules of international humanitarian law do not require a military commander to refrain from defending his country but demand that he ensure that his conduct and that of his subordinates comply with established humanitarian principles. In any event, the Trial Chamber found that, while the VJ and the MUP launched their joint offensive against the KLA and NATO, they also launched a widespread and systematic campaign of forcible displacement against the civilian population.⁵⁴⁶⁴"

5463. Boskoski and Tarčulovski Appeal Judgement, para. 31. See also Kordic and Čerkez Appeal Judgement, para. 812.

5464. Trial Judgement, vol. 3, para. 822. See also ibid., vol. 2, paras 1156, 1178.

"1663. The Appeals Chamber further finds no error in the Trial Chamber’s conclusion that Lazarevic’s role in the provision of weaponry rendered practical assistance to the commission of crimes by the VJ forces. The Appeals Chambers finds that a reasonable trier of fact could have concluded that undertaking such tasks, with the awareness that the crimes of deportation and forcible transfer were being committed by the troops, amounts to rendering practical assistance to the perpetrators. In this context, the Appeals Chamber recalls, as addressed previously, that “specific direction” is not an element of the actus reus of aiding and abetting.⁵⁴⁶⁵ Thus Lazarevic’s assertion that it was legitimate to supply VJ units with weaponry in light of the fight against NATO and the KLA is inapposite."

5465. See supra, sub-section VIII.B.3.(a). See also Lukic and Lukic Appeal Judgement, para. 424, citing Mrksic and Sljivancanin Appeal Judgement, para. 159.

"1664. As to Lazarevic’s claim that the Trial Chamber misinterpreted the Grom 3 and Grom 4 plans and the cooperation between the VJ and the MUP, the Appeals Chamber notes that Lazarevic repeats verbatim entire passages from his Closing Brief,⁵⁴⁶⁶ without showing any error of the Trial Chamber warranting the Appeals Chamber’s intervention.⁵⁴⁶⁷ Further, Lazarevic’s submission that the VJ planned operations only for its units and that cooperation between the VJ and the MUP was based on “individual contacts of lower ranking officers” ignores the Trial Chamber’s detailed analysis of orders issued by the Pristina Corps Command for the conduct of joint operations.⁵⁴⁶⁸ Significantly, the Trial Chamber referred to Lazarevic’s Grom 3 order issued on 16 February 1999, instructing the Pristina Corps Command subordinate units to act in coordination with specific MUP units,⁵⁴⁶⁹ as well as to several orders issued in May 1999 envisaging the conduct of joint operations in different sectors⁵⁴⁷⁰."

5466. Cf. Lazarevic’s Appeal Brief, paras 455-482, 487 and Lazarevic’s Closing Brief, paras 617-628, 778, 827-842.

5467. Lazarevic’s challenges to the Trial Chamber’s findings on the existence and role of the Joint Command are rejected on the same basis (Cf. Lazarevic’s Appeal Brief, paras 483, 485-486 and Lazarevic’s Closing Brief, paras 776-777, 843). The Appeals Chamber further recalls that it has dismissed challenges of Sainovic, Pavkovic, and Lukic in relation to the existence and functioning of the Joint Command (see supra, sub-section VII.C.).

5468. Trial Judgement, vol. 3, paras 824-828, and referencces therein.

5469. Trial Judgement, vol. 3, para. 824, referring to Exh. P2808.

5470. Trial Judgement, vol. 3, para. 828, referring to Exh. 6D704, pp. 1, 5, Exh. P2011, Exh. 6D709, Exh. P2014, Exh. 6D712, Exh. P1503.

"1665. Lazarevic’s argument that the Trial Chamber erred in finding that several joint operations were ordered by the Pristina Corps Command in May 1999 based on the orders for the resubordination of the MUP forces to the VJ⁵⁴⁷¹ has no bearing on his convictions. The Trial Chamber found that such re-subordination did not occur in practice; rather, it found that the relationship between the VJ and the MUP remained that of cooperation and coordination.⁵⁴⁷²"

5471. Lazarevic’s Appeal Brief, paras 488-490, referring to Trial Judgement, vol. 1, para. 1203, ibid., vol. 3, para. 828.

5472. Trial Judgement, vol. 1, para. 1203.

"1666. Finally, the Appeals Chamber finds unpersuasive Lazarevic’s argument that the crimes allegedly committed by the MUP prior to the commencement of the operation in Dubrava/Lisnaja occurred in a different zone of VJ responsibility than the joint operation he later ordered. In this respect, the Appeals Chamber notes the Trial Chamber’s finding on the widespread and systematic nature of the campaign of violence and forcible displacement that took place throughout Kosovo at the time and the fact that Lazarevic’s report to the 3rd Army Command, containing information on the commission of crimes against Kosovo Albanian civilians, did not confine the occurrence of such crimes to one area of Kosovo.⁵⁴⁷³ Consequently, Lazarevic has failed to show that a reasonable trier of fact could not have concluded that he continued to approve joint VJ and MUP operations despite receiving information about crimes allegedly committed by the MUP.⁵⁴⁷⁴"

5473. See Exh. P1458.

5474. Trial Judgement, vol. 3, para. 848. See also ibid., vol. 2, paras 1141-1148.

"1667. The Appeals Chamber recalls its finding that the Trial Chamber erred in concluding that based on his knowledge of events by the end of 1998, Lazarevic was aware that forcible displacement was likely to occur if he ordered the VJ to operate in Kosovo in 1999.⁵⁴⁷⁵The Appeals Chamber, however, recalls that it has also found that a reasonable trier of fact could have concluded that Lazarevic was aware of the campaign of terror, violence, and forcible displacement carried out by the VJ and the MUP during joint operations in Pristina/Prishtina from 24 March 1999.⁵⁴⁷⁶The Appeals Chamber therefore considers that it was established that Lazarevic possessed the requisite mens rea of aiding and abetting at this time. Accordingly, Lazarevic’s issuance of the Grom 3 order to the Priština Corps units on 7 February 1999 cannot be considered as an act of assistance to the commission of deportation and forcible transfer by the VJ forces, as it was not established that at the time of its issuance, he had the requisite mens rea for aiding and abetting the commission of forcible displacement by the VJ.⁵⁴⁷⁷The Appeals Chamber, however, finds that this consideration does not undermine the Trial Chamber’s overall finding that Lazarevic assisted the commission of crimes by sending “the VJ into actions in Kosovo and provid[ing] the authorisation within the VJ chain of command for the VJ to operate in the crime sites where many of the forcible displacements of Kosovo Albanians were conducted.”⁵⁴⁷⁸In this regard, the Appeals Chamber observes that the Trial Chamber’s finding on his participation in the planning and execution of joint operations in Kosovo (constituting part of his actus reus of aiding and abetting) was not based solely on his issuance of the Grom 3 order, but also on his issuance of the Grom 4 order to the Priština Corps units on 6 April 1999 and his role in issuing orders with the Joint Command heading⁵⁴⁷⁹ to the units for operations from late March 1999 throughout the Indictment period⁵⁴⁸⁰."

5475. See infra, sub-section VIII.B.4.(a).

5476. See infra, sub-section VIII.B.4.(b).

5477. The Appeals Chamber recalls in this respect that the principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises his actus reus (Cf. Naletilić and Martinović Appeal Judgement, para. 114. See also Krajišnik Appeal Judgement, para. 203). The mens rea of an aider and abettor must therefore exist at the time he provides assistance to the crime for which he is held responsible (See, e.g., Haradinaj et al. Appeal Judgement, para. 58).

5478. Trial Judgement, vol. 3, para. 925.

5479. See Trial Judgement, vol. 3, para. 827, recalling its finding that the Priština Corps Command was the source of the Joint Command orders and noting that Lazarevic took responsibility for the issuance of these orders.

5480 See Trial Judgement, vol. 3, paras 825-829 (referring to Exh. P1878, Exh. P1968, Exh. P1969, Exh. P1970, Exh. P1971, Exh. P1972, Exh. P1973, Exh. P1974, Exh. 1975, Exh. 1976, Exh. P1977, Exh. P2003), 925.

"1668. In light of the foregoing, the Appeals Chamber dismisses sub-grounds 3(c), 3(f), and 3(i) of Lazarevic’s appeal in relevant part."

"1691. The Appeals Chamber has overturned the Trial Chamber’s finding that: (i) Lazarevic’s inspection of the VJ units provided encouragement and moral support to the VJ forces engaging in forcible displacement;⁵⁵⁴¹ and (ii) Lazarevic’s failure to take adequate investigative and punitive measures substantially contributed to the commission of the crimes of forcible transfer and deportation by VJ forces.⁵⁵⁴² The impact of these findings, if any, on Lazarevic’s sentence will be addressed below.⁵⁵⁴³"

5541. The Appeals Chamber recalls that it has found that the Trial Chamber erred in finding that Lazarevic’s issuance of the Grom 3 order to the Priština Corps units amounted to an act of assistance to the commission of deportation and forcible transfer by the VJ forces (see supra, para. 1667). However, as discussed previously, this conclusion does not undermine the Trial Chamber’s main finding that Lazarevic contributed to the commission of crimes through his participation in the planning and execution of joint operations in Kosovo throughout the Indictment period (see supra, para. 1667).

5542. See supra, sub-section VIII.B.3.(e).

5543. See infra, sub-section IX.I.

"1692. The Appeals Chamber considers, however, that these errors have no impact on the Trial Chamber’s finding that Lazarevic provided practical assistance to members of the VJ involved in the commission of forcible transfer and deportation and that this had a substantial effect on the commission of these crimes. In this context, the Appeals Chamber recalls that the Trial Chamber found that Lazarevic participated in the planning and execution of the joint operations conducted by the VJ and thereby substantially contributed to the commission of the crimes by the VJ as such conduct provided assistance in terms of soldiers on the ground to carry out the acts, organising and equipping VJ units, and the provision of weaponry, including tanks, to assist these acts.⁵⁵⁴⁴ The Appeals Chamber is satisfied that a reasonable trier of fact could have found that these acts had a substantial effect on the commission of deportation and forcible transfer."

5544. Trial Judgement, vol. 3, paras 925-926. See also supra, para. 1667.

"1693. The Appeals Chamber therefore finds that Lazarevic has failed to demonstrate that the Trial Chamber erred in finding that he aided and abetted the crimes of deportation and forcible transfer through his involvement in the joint operations of the MUP and the VJ in 1999."

B. Evidentiary comment:

According to Eser "If the ICTR defines aiding as "giving assistance to someone" whereas abetting would ‘involve facilitating the commission of an act by being sympathetic thereto’ (ICTR Trial Chamber Akayesu case, supra note 123, para. 484), aiding, perhaps not surprisingly, is practically identical with assisting, while abetting comes close to, if not being almost completely identifiable with, instigation (This is even more evident with the common definition of abetting in terms of ‘to command, procure, counsel, encourage, induce, or assist’ in Black’s Law Dictionary , supra note 116,5. See also B. Huber, ‘Alleinhandeln und Zusammenwirken aus englischer Sicht’ in Eser, Huber and Cornils, supra note 45, at 79, 84)." (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p. 799).

M.P.17. Evidence that the suspect pronounced words of encouragement.

A. Legal source/authority and evidence:

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, paras. 3333-3334, 3344-3346:

"3333. The Appeals Chamber is not persuaded that the Trial Chamber erred in finding that Kanyabashi’s Speech did not substantially contribute to the genocide in Butare Prefecture that followed Nsabimana’s Swearing-In Ceremony.⁷⁶³³ The Appeals Chamber notes that, although the Trial Chamber appears to have primarily relied on its finding that Kanyabashi’s Speech was not inflammatory to reach its conclusion, it also relied on “the evidence in its totality”.⁷⁶³⁴ TheProsecution fails to demonstrate that the evidence on the record shows otherwise and eliminates all reasonable doubt that Kanyabashi’s Speech substantially contributed to the subsequent massacres in Butare Prefecture. Indeed, the Appeals Chamber observes that, while the Trial Chamber found that Kambanda’s and Sindikubwabo’s Speeches contributed to the genocide in Butare Prefecture,⁷⁶³⁵ the Prosecution does not point to any evidence to support the conclusion that Kanyabashi’s Speech did.⁷⁶³⁶ In particular, the Prosecution does not point to any evidence showing or suggesting that Kanyabashi’s supportive message and commitment to execute Kambanda’s and Sindikubwabo’s instructions encouraged or provided moral support to the attendees or the people of Butare Prefecture to kill Tutsis. The Prosecution also does not rely on any evidence connecting Kanyabashi’s Speech in any way to the genocidal acts that occurred in the prefecture after the swearing-in ceremony, including the massacres expressly cited by the Trial Chamber.⁷⁶³⁷ In light of this and bearing in mind the Trial Chamber’s finding that Kanyabashi’s Speech was not of the same nature as those of Kambanda and Sindikubwabo, the Appeals Chamber finds no error in the Trial Chamber’s finding that Kanyabashi’s Speech did not substantially contribute to the killings in Butare Prefecture that followed Nsabimana’s Swearing-In Ceremony.

7633. Trial Judgement, para. 5753.

7634. Trial Judgement, para. 5753.

7635. Trial Judgement, paras. 932, 5673, 5741, 5753. See also ibid., paras. 933, 5742, 5746. The Appeals Chamber observes that, as part of his supplementary grounds of appeal, Kanyabashi challenges the Trial Chamber’s finding that Kambanda’s and Sindikubwabo’s Speeches triggered the genocide in Butare Prefecture that occurred after the swearing-in ceremony. See Kanyabashi Response Brief, paras. 109-118. The Appeals Chamber considers it unnecessary to discuss this issue in light of its conclusions on the merits of the Prosecution’s appeal.

7636. The Appeals Chamber observes that neither the Trial Chamber nor the Prosecution cited evidence showing or suggesting that Kanyabashi’s Speech was one of the factors that triggered the ensuing genocide. The Trial Chamber’s conclusion that Kambanda’s and Sindikubwabo’s Speeches triggered the genocide was primarily based on the evidence on the impact of Sindikubwabo’s Speech and the evidence that widespread killings of Tutsis did not occur in Butare Prefecture prior to 19 April 1994 and that there was “overwhelming evidence that massacres in most of the Butare communes started in the wake of the events of 19 April 1994.” See Trial Judgement, paras. 853-856, 927, 930, 932, 933. The Trial Chamber also cited Expert Witnesses Des Forges’s and Reyntjens’s testimonies that they also considered that both Kambanda’s and Sindikubwabo’s Speeches were factors that triggered the genocide in Butare Prefecture. See ibid., paras. 640, 643-645 (Alison Des Forges), 786 (Filip Reyntjens). See also ibid., paras. 668, 692-694 (André Guichaoua).

7637. See Trial Judgement, para. 5753, referring to, e.g., ibid., Sections 4.2.2.3.3 (Mugombwa Church), 4.2.2.3.4 (Kabuye Hill), 4.2.2.3.6 (Kabakobwa Hill).

3334. In light of the foregoing, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in finding that Kanyabashi’s Speech did not substantially contribute to the genocide that followed Nsabimana’s Swearing-In Ceremony and, consequently, in not holding him criminally responsible for aiding and abetting genocide on this basis. Consequently, the Appeals Chamber finds it unnecessary to discuss the Prosecution’s submissions concerning Kanyabashi’s mens rea and dismisses this remaining part of Ground 1 of the Prosecution’s appeal."

"3344. The Trial Chamber found that “the Prosecution had not adduced sufficient evidence to support that Kanyabashi substantially contributed to any incitement made by Kambanda, Sindikubwabo, or other speakers at this event.”⁷⁶⁶³ The Appeals Chamber sees no error in the Trial Chamber’s determination. Even if Kambanda’s and Sindikubwabo’s conduct at Nsabimana’s Swearing-In Ceremony were found to constitute direct and public commit genocide,⁷⁶⁶⁴ nothing in the Trial Chamber’s findings or in the evidence relied upon by the Prosecution sustains the conclusion that Kanyabashi’s Speech substantially contributed to the perpetration of the crime of direct and public incitement to commit genocide committed by Kambanda and Sindikubwabo.

7663. Trial Judgement, para. 5993.

7664. The first issue raised by the Prosecution is whether Kambanda’s and Sindikubwabo’s conduct at Nsabimana’s Swearing-In Ceremony constituted direct and public incitement to commit genocide. The Trial Chamber did not make specific legal findings in this respect. Nevertheless, in light of its conclusions on the merits of the Prosecution’s appeal, the Appeals Chamber finds it unnecessary to decide this issue and to address Kanyabashi’s arguments relating to the “public” nature of the speeches delivered at the ceremony. See Prosecution Appeal Brief, para. 34; Prosecution Reply Brief, paras. 54, 55; Kanyabashi Response Brief, para. 157; AT. 22 April 2015 pp. 7, 8, 20, 24.

3345. As an inchoate crime,⁷⁶⁶⁵ direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time,⁷⁶⁶⁶ and is punishable even if no act of genocide has resulted therefrom.⁷⁶⁶⁷ Accordingly, in order for Kanyabashi to be found responsible for aiding and abetting direct and public incitement to commit genocide, it would have to be established that he substantially contributed to Kambanda’s and Sindikubwabo’s inciting speeches themselves and not, as the Prosecution suggests, to the effects of their incitements by “reiterat ing and reinforc ing their message”.⁷⁶⁶⁸ The Appeals Chamber recalls that the Trial Chamber determined that Kanyabashi spoke after Kambanda and Sindikubabwo delivered their speeches.⁷⁶⁶⁹ The Prosecution points to no evidence or findings demonstrating that Kanyabashi’s conduct provided substantial assistance to Sindikubwabo or Kambanda in the commission of their direct and public incitement to commit genocide, either before, during, or after their respective speeches.

7665. Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678.

7666. Nahimana et al. Appeal Judgement, para. 723.

7667. Nzabonimana Appeal Judgement, para. 234; Nahimana et al. Appeal Judgement, para. 678.

7668. See Prosecution Appeal Brief, para. 35.

7669. Trial Judgement, para. 910. See also ibid., paras. 5752, 5992. The Appeals Chamber observes that, as part of his supplementary grounds of appeal, Kanyabashi challenges the Trial Chamber’s finding that he spoke after Kambanda and Sindikubwabo. See Kanyabashi Response Brief, paras. 29-52. The Appeals Chamber finds it unnecessary to discuss the issue in light of its conclusion on the merits of the Prosecution’s appeal.

3346. In these circumstances, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in finding that there was insufficient evidence to support the conclusion that Kanyabashi substantially contributed to any incitement made by Kambanda or Sindikubwabo during Nsabimana’s Swearing-In Ceremony. The Appeals Chamber consequently dismisses this remaining part of Ground 2 of the Prosecution’s appeal."

Prosecutor v. Augustin Ngirabatware, Case No. MITC-12-29-A, Judgment (AC), 18 December 2014, paras. 27-29:

"27. The Appeals Chamber notes that paragraph 41 of the Indictment alleges that, in February 1994, Ngirabatware went to the Cyanika-Gisa roadblock, addressed the Interahamwe youths manning the roadblock and gave them and Honore Ndayamiyemenshi money "as encouragement and incitement for their work in capturing and killing Tutsis". Paragraph 49 of the Indictment alleges that, towards the end of February 1994, Ngirabatware went to the same roadblock and addressed the youths who were present, including Ndayamiyemenshi, "incit[ing] them to kill members of the Tutsi population, by telling them that the Hutu leader was murdered the night before, and called on them to kill all the Tutsis".

28. The Appeals Chamber notes that in its analysis, the Trial Chamber discussed the evidence in relation to the allegations contained in paragraphs 41 and 49 of the Indictment together.⁸²Having considered the evidence of Witnesses ANAN and ANAT,⁸³ the Trial Chamber observed that they both testified to Ngirabatware addressing a crowd and giving money to Ndayamiyemenshi at the Cyanika-Gisa roadblock.⁸⁴ It considered that the witnesses described the same roadblock, irrespective of the name they used to identify it.⁸⁵ The Trial Chamber also took into account the discrepancies in the witnesses' testimony in relation to the date of the event but considered that these were minor given the lapse of time and the similarities in their accounts.⁸⁶ The Trial Chamber was therefore convinced that both witnesses referred to the same event.⁸⁷

82. See Trial Judgement, paras. 221 -222, 300-320.

83. The Prosecution indicated that Witnesses ANAN and ANAT were expected to testify in relation to both paragraphs 41 and 49 of the Indictment. See Prosecution Pre-Trial Brief, RP. 1245; The Prosecutor II. Augustin Ngirabatware, Case No. ICTR-99-54-T, Prosecutor's Extremely Urgent Motion for Leave to Vary the List of Witnesses to be Called and Extension of Witness Protection Orders, 22 December 2009 (confidential) ("Prosecution's Motion for Leave to Vary Witness List"), para. 25.

84. See Trial Judgement, paras. 305-306.

85. Trial Judgement, para. 305.

86. See Trial Judgement, para. 307.

87. See Trial Judgement, para. 307.

29. On the basis of the evidence presented, the Trial Chamber found that Ngirabatware's instruction to "'kill Tutsis' objectively and unambiguously called for an act of violence" prohibited under Article 2(2) of the ICTR Statute.⁸⁸ On this basis, it found Ngirabatware guilty of direct and public incitement to commit genocide.⁸⁹The Appeals Chamber is satisfied that paragraph 49 of the Indictment provided Ngirabatware with sufficient notice In this regard. As to the allegation contained in paragraph 41 of the Indictment that Ngirabatware gave money at the roadblock, the Trial Chamber found that the Prosecution had failed to prove that weapons used in attacks against Tutsis were purchased with this money.⁹⁰ Accordingly, Ngirabatware was not found criminally responsible for this conduct.⁹¹ The Appeals Chamber finds that Ngirabatware has failed to demonstrate that he was unduly prejudiced by the Trial Chamber's decision to consider the allegations in paragraphs 41 and 49 of the Indictment together, particularly given that he was acquitted of the core allegation contained in paragraph 41 of the Indictment.

88. Trial Judgement, para. 1368.

89. Trial JUdgement, paras. 1367-1370.

90. Trial Judgement, para. 320.

91. Trial Judgement, para. 320."

Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-A, Judgement (AC), 26 September 2013, para. 523-524:

"523. In assessing whether Taylor’s acts and conduct had a substantial effect on the commission of the crimes, the Trial Chamber considered its findings that during the Indictment Period, Taylor provided ongoing advice and encouragement to the RUF/AFRC, and that there was ongoing communication and consultation between Taylor and the RUF/AFRC leadership.1573 It found that Taylor in fact provided advice, and that the RUF/AFRC leadership heeded his advice on a number of instances. 1574 Following the Intervention, Taylor repeatedly advised them to attack, capture and maintain control over Kono District, a diamondiferous area.1575 They acted in accordance with this advice by repeatedly attacking Kono in 1998, during which they directed widespread and systematic attacks against the civilian population and committed crimes charged in the Indictment.1576 On certain occasions Taylor demonstrably altered the RUF/AFRC’s behaviour, including delaying disarmament.1577 At times the RUF/AFRC leadership followed instructions from Taylor that directly served Taylor’s, rather than their, interests.1578

524. The Trial Chamber’s findings and reasoning also demonstrate the specific factual circumstances and the consequences established by the evidence relevant to the effect of Taylor’s acts and conduct of encouragement and moral support in qualitative terms. Taylor held a position of authority as an elder statesman and as President of Liberia, and was accorded deference by the RUF/AFRC.1579 The RUF/AFRC referred to him as "Pa", "father", "Papay", "godfather", "Chief", or "commander in chief" (CIC), which clearly indicated the respect the RUF/AFRC had for Taylor.1580 Taylor advised the RUF/AFRC where and how to best implement its Operational Strategy to achieve its goals, including the capture of Kono so that it could obtain more materiel to launch more offensives1581 and making the attack on Freetown "fearful" so that the RUF/AFRC could force the government into negotiations and achieve its goal of freeing Foday Sankoh.1582 During the Junta Period, Taylor encouraged the RUF and AFRC to work together,1583 and immediately after the Intervention, Taylor met Sam Bockarie in Monrovia and said that he would help and provide support.1584 During the disarmament process following the Lome Peace Accord, Taylor privately advised Issa Sesay not to disarm and to resist disarmament in Sierra Leone.1585 In July 2000, Taylor urged Issa Sesay to agree to disarm but not to do it in reality, saying one thing to Sesay in front of the ECOWAS Heads of State and another to him in private."1586

1573 Trial Judgment, para. 6940. See generally Trial Judgment, paras 3611-3618 (Military Operations: Summary of Findings and Conclusion), 6451-6458 (Peace Process: Summary of Findings and Conclusion), 6767-6787 (Leadership and Command Structure: Summary of Findings and Conclusions).

1574 See, e.g., Trial Judgment, paras 2863, 2951, 4105, 4259, 6345, 6414.

1575 Trial Judgment, para. 3613. In February 1998, Taylor gave Johnny Paul Koroma two instructions to capture Kono, which led to the ultimate recapture of Koidu Town in late February/early March 1998. In February/March 1998, Taylor told Sam Bockarie to be sure to maintain control of Kono for the purpose of trading diamonds with him for arms and ammunition. In mid-June 1998, Taylor advised Bockarie to recapture Kono so that the diamonds there would be used to purchase arms and ammunition, which resulted in the Fitti-Fatta attack in mid-June 1998. Before the Freetown Invasion, Taylor emphasised to Bockarie the importance of attacking Kono due to its diamond wealth, and the RUF/AFRC captured Kono in the course of the attack on Freetown. Trial Judgment, paras 2863, 2864, 2951, 3112. See generally Trial Judgment, paras 2754-2769 (Military Operations: Alleged Message from Base 1 to Troops Retreating from Kono), 2770-2864 (Military Operations: Operations in Kono (Early 1998)), 2865-2951 (Military Operations: Operation Fitti-Fatta), 2952-3130 (Military Operations: The Freetown Invasion: The Plan).

1576 See supra paras 279-284.

1577 Trial Judgment, paras 6443, 6447-6449. See generally Trial Judgment, paras 6416-6450 (Peace Process: Communication with Issa Sesay on Disarmament).

1578 See, e.g., Trial Judgment, paras 6663 (finding that Taylor - ordered Bockarie to send AFRC/RUF forces to assist him in his fight against Mosquito Spray and the LURD forces that had attacked his forces, and that during the fighting, the AFRC/RUF forces operated under the overall command of [Taylor’s] Liberian subordinates.), 6728 (finding that - in 2000 and 2001 [Taylor] instructed Issa Sesay to send RUF forces, and that the RUF forces sent in response to these requests fought alongside AFL forces in Liberia and Guinea under the command of [Taylor’s] subordinates.). See generally Trial Judgment, paras 6617-6663 (Leadership and Command Structure: Operations Outside Sierra Leone: RUF/AFRC against Mosquito Spray/LURD in Liberia, 1999), 6664-6728 (Leadership and Command Structure: Operations Outside Sierra Leone: Operations in Liberia and Guinea during Issa Sesay’s leadership).

1579 Trial Judgment, para. 6945.

1580 Trial Judgment, para. 6768.

1581 Trial Judgment, para. 3613. See generally Trial Judgment, paras 3611-3618 (Military Operations: Summary of Findings and Conclusion).

1582 Trial Judgment, para. 3130. See generally Trial Judgment, paras 2952-3130 (Military Operations: The Freetown Invasion: The Plan).

1583 Trial Judgment, para. 6520.

1584 Trial Judgment, para. 6543.

1585 Trial Judgment, paras 6442, 6444, 6447, 6449, 6450, 6451(xi), 6458, 6785. See generally Trial Judgment, paras 6416-6450 (Peace Process: Communication with Issa Sesay on Disarmament).

1586 Trial Judgment, paras 6419, 6442, 6443, 6451(xi), 6458, 6785.

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement (AC), 24 March 2000, paras. 162-164:

"162. The liability of a person charged with aiding and abetting another person in the commission of a crime was extensively considered by Trial Chamber II in the Furundžija Judgement.²⁹⁴ It stated the following conclusions:²⁹⁵

The Trial Chamber had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal.²⁹⁶It is clear that what must be shown is that the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.

163. Subsequently, in the Tadic Judgement, the Appeals Chamber briefly considered the liability of one person for the acts of another person where the first person has been charged with aiding and abetting that other person in the commission of a crime. ²⁹⁷ This was in the context of contrasting that liability with the liability of a person charged with acting pursuant to a common purpose or design with another person to commit a crime, and for that reason that judgement does not purport to be a complete statement of the liability of the person charged with aiding and abetting. It made the following points in relation to the aider and abettor:²⁹⁸

164. The Trial Chamber in the present case relied upon the Furundžija Judgement , amongst other decisions at first instance within the Tribunal (the Tadic Judgement of the Appeals Chamber was given after the Trial Chamber had given its judgement).²⁹⁹ The Trial Chamber expressed itself in various ways, but identified what it saw to be the two essential elements which had to be established in order to demonstrate liability for the acts of others, in these terms:

"²⁹⁴ - Furundzija Judgement, paras. 190-249.
²⁹⁵ - Ibid., para. 249.
²⁹⁶ - Ibid., para. 245.
²⁹⁷ - Judges Cassese and Mumba were members of the Trial Chamber in Furundzija, and of the Appeals Chamber in Tadic.
²⁹⁸ - Tadic Judgement, para. 229.
²⁹⁹ - Aleksovski Judgement, para. 60.
³⁰⁰ - Ibid, para. 61. The citations of authority have been omitted."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 paras. 452, 693, 706-707:

"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:

"706. With regard to the acts alleged in paragraphs 12 (A) and 12 (B) of the Indictment, the Prosecutor has shown beyond a reasonable doubt that between 7 April and the end of June 1994, numerous Tutsi who sought refuge at the Taba Bureau communal were frequently beaten by members of the Interahamwe on or near the premises of the Bureau communal. Some of them were killed. Numerous Tutsi women were forced to endure acts of sexual violence, mutilations and rape, often repeatedly, often publicly and often by more than one assailant. Tutsi women were systematically raped, as one female victim testified to by saying that "each time that you met assailants, they raped you". Numerous incidents of such rape and sexual violence against Tutsi women occurred inside or near the Bureau communal. It has been proven that some communal policemen armed with guns and the accused himself were present while some of these rapes and sexual violence were being committed. Furthermore, it is proven that on several occasions, by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that "never ask me again what a Tutsi woman tastes like"¹⁷⁷. In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed.

707. In the opinion of the Chamber, the above-mentioned acts with which Akayesu is charged indeed render him individually criminally responsible for having abetted in the preparation or execution of the killings of members of the Tutsi group and the infliction of serious bodily and mental harm on members of said group."

"¹⁷⁷. "Ntihazagire umbaza uko umututsikazi yari ameze, ngo kandi mumenye ko ejo ngo nibabica nta kintu muzambaza.""

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-TC, Judgement (TC), 22 June 2009, para. 474. But see Appeals Chamber’s findings, Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-A, Judgement (AC), 20 October 2010, para. 135 (Below)

"474. The Chamber also finds that the Prosecution has proven beyond reasonable doubt that, by doing so, Kalimanzira both instigated and aided and abetted genocide. The Chamber recalls that modes of liability under Article 6 (1) of the Statute are not mutually exclusive and that the Chamber may find the accused guilty of more than one mode if it is necessary to reflect the totality of the accused’s conduct. By asking those men at the roadblock why they had not killed the Tutsis who were detained there, Kalimanzira prompted those men to kill the Tutsis; by providing the weapon with which at least some of those Tutsis were killed, Kalimanzira assisted in the perpetration of their murders. The Chamber finds that Kalimanzira’s speech and actions substantially contributed to the killings of the Tutsis detained at the roadblock, and that it was his intention to do so. Kalimanzira exhibited here, as elsewhere, an intent to destroy the Tutsi group (see III.5.2). For these reasons, the Chamber finds Kalimanzira guilty beyond reasonable doubt of having instigated and aided and abetted genocide at a roadblock on the Butare-Gisagara road on or around 22 April 1994."

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-A, Judgement (AC), 20 October 2010, para. 135:

"135. Bearing in mind the previously articulated principles of notice,362 the Appeals Chamber considers that Kalimanzira could not have known, on the basis of the Indictment alone, that he was being charged in connection with the killings at the Butare-Gisagara roadblock. Accordingly, the Appeals Chamber finds, as the Trial Chamber concluded, that paragraph 15 of the Indictment is defective."

ICTY

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement (AC), 24 March 2000, paras. 162-164:

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 6:

"6. The Prosecution does not allege that the Accused was a military leader, nor does it base his criminal responsibility on Article 7 (3) of the Statute of the Tribunal, applicable to a military or civilian superior. Nevertheless, the Prosecution does attribute extensive authority to the Accused, which he also wielded in the conflict zones that he visited in order to boost the morale of his troops. The Prosecution submits that the Accused established a War Staff within his party that notably took care of logistical needs and the deployment of volunteers; that he was kept regularly informed of the activities of his troops; that he had the power to intervene with volunteers and to promote them, and that he had even decorated some of them by conferring upon them the rank of Vojvoda, which he himself held."

M.P.18. Evidence of the accused providing moral support

"2721. The Trial Chamber did not discuss in the Trial Judgement whether Ndayambaje had received sufficient notice that he could be held responsible for aiding and abetting the Mugombwa Church massacre, concluding generally that he was put on notice that he was “accused of participating in, including through giving orders, and supervising the massacre at Mugombwa Church, Muganza commune, along with other commune authorities in late April1994.”⁶²⁵³ Although Ndayambaje did not specifically object to the vagueness of paragraph 6.37 of the Indictment regarding his alleged form of responsibility under Article 6(1) of the Statute,⁶²⁵⁴ the Appeals Chamber considers that it would have been preferable for the Trial Chamber to explain why it was satisfied that Ndayambaje was put on sufficient notice that he could be held responsible for aiding and abetting the killings perpetrated at Mugombwa Church.

6253. Trial Judgement, para. 1031.

6254. Ndayambaje had objected to the vagueness of paragraph 6.37 of the Ndayambaje Indictment as regards the nature of his participation in the massacres referred therein. See Ndayambaje Closing Brief, paras. 61-63.

2722. The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and that the Prosecution should therefore indicate precisely which form of responsibility is invoked based on the facts alleged.⁶²⁵⁵ When it is alleged that the accused planned, instigated, ordered, or aided and abetted the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the "particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges in question.⁶²⁵⁶

6255. Uwinkindi Appeal Decision, para. 48; Blaškić Appeal Judgement, para. 215.

6256. See, e.g., Ndindiliyimana et al. Appeal Judgement, para. 172; Ntawukulilyayo Appeal Judgement, para. 188; Blaškić Appeal Judgement, para. 213.

2723. The Appeals Chamber observes that the Prosecution generally indicated in the charging section of the Indictment that the relevant counts were pursued pursuant to Article 6(1) of the Statute, without specifying any particular form of responsibility. In paragraph 6.37 of the Indictment, the Prosecution alleged that Ndayambaje “ordered, supervised and participated in massacres”, without identifying any particular acts on the part of Ndayambaje that may characterise a responsibility for aiding and abetting. Although the Prosecution alleged in paragraph 6.56 of the Indictment, which elaborates on Ndayambaje’s responsibility in broad terms, that Ndayambaje “aided and abetted his subordinates and others in carrying out the massacres”, it failed to link this paragraph to paragraph 6.37 or the allegation concerning Ndayambaje’s participation in killings in Muganza Commune and the surrounding area pleaded therein, and to specify Ndayambaje’s impugned conduct. In this context, the Appeals Chamber is not satisfied that the Indictment put Ndayambaje on sufficient notice of his particular acts or course of conduct which formed the basis for the charge of aiding and abetting the massacres invoked in paragraph 6.37. The Appeals Chamber stresses that the relevant question is not whether Ndayambaje was given notice that he was charged with aiding and abetting crimes, but whether he was given notice that he was charged with aiding and abetting the killings alleged in paragraph 6.37 and whether the particular acts or course of conduct on his part with respect to the killings which formed the basis of the charge against him were identified.

2724. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective in relation to the allegation that Ndayambaje aided and abetted the massacres in which he was alleged to have participated in paragraph 6.37 of the Indictment.

2725. The Appeals Chamber, however, finds that this error does not invalidate the Trial Chamber’s decision to convict Ndayambaje on this basis as it considers that the ambiguity of the Indictment was remedied by the information provided by the Prosecution in its pre-trial brief. Specifically, the Appeals Chamber finds that the Indictment read in conjunction with Witnesses FAG’s, FAU’s, and TU’s summaries gave notice to Ndayambaje that he was alleged to have contributed to the Mugombwa Church massacre through, inter alia, his presence at the church during the days of the attacks and his influence and moral authority over the assailants.⁶²⁵⁷ Ndayambaje’s alleged knowledge of his contribution to the massacre and of the assailants’ genocidal intent was also abundantly clear from these materials.⁶²⁵⁸ While the information provided through the summaries also indicated that Ndayambaje transported attackers and grenades to the church, supervised the massacre and issued instructions, this was not inconsistent with the fact that Ndayambaje may also have been responsible for aiding and abetting the crimes by providing moral support and encouragement by his presence. The Appeals Chamber concludes that the subsequent information provided to Ndayambaje through Witnesses FAG’s, FAU’s, and TU’s summaries sufficiently informed him of the course of conduct on his part supporting the generally pleaded charge of aiding and abetting, thereby curing the defect in the Indictment.

6257. In paragraph 30 of the Prosecution Pre-Trial Brief, it is only stated in a very general manner that, knowing that massacres of the civilian population were being committed, Ndayambaje and others took no measures to stop them and “ i nstead of intervening to control and appeal to the perpetrators, Ndayambaje and others ordered, aided and abetted the acts.

6258. Ndayambaje also argues in general terms in his appeal brief that the Trial Chamber erred in convicting him as the Ndayambaje Indictment failed to plead his genocidal intent. See Ndayambaje Appeal Brief, para. 131. The Appeals Chamber considers that any error as regards the pleading of Ndayambaje’s genocidal intent in relation to his participation in the killings perpetrated at Mugombwa Church would not have the potential of invaliding his convictions for aiding and abetting these killings as this form of responsibility does not require a finding that the aider and abetter had genocidal intent. In any case, the Appeals Chamber notes that the Prosecution pleaded under the count of genocide that Ndayambaje acted “with the intent to destroy, in whole or in part, a racial or ethnic group”. See Ndayambaje Indictment, p. 41.

2726. This conclusion is bolstered by a review of the conduct of Ndayambaje’s defence at trial which reflects that he was provided with sufficient information to conduct meaningful investigations and prepare an effective defence against the allegation that his presence at Mugombwa Church encouraged the killings perpetrated there on 20 and 21April 1994. In defending against the allegation that he was not present during the days of the attacks, Ndayambaje testified and called witnesses to support his alibi for 20 and 21 April 1994 and to rebut the allegations of his presence which, together with his moral authority, is the basis of his conviction for aiding and abetting the killings at Mugombwa Church.⁶²⁵⁹ Ndayambaje also extensively cross-examined Witness QAR on aspects of her evidence regarding his role and presence during the days of the attacks.⁶²⁶⁰

6259. Trial Judgement, para. 1196. See also ibid., paras. 1094-1118, 1122-1126, 1136, 1137, 1144, 1149, 1154, 1165-1173, 1181-1193. See also The Prosecutor v. Élie Ndayambaje, Case No. ICTR-96-8-T, Pre-Defence Brief, 23 December 2004 (originally filed in French, English translation filed on 8 February 2005) (“Ndayambaje Pre-Defence Brief”), Annex 3 “List of Defence Witnesses”

6260. Witness QAR, T. 20 November 2001 pp. 115, 116, 119-121, 124-128, 130-134; T. 21 November 2001 pp. 5-13, 33-34, 38-49, 52-56.

2727. In these circumstances, the Appeals Chamber finds that Ndayambaje was ultimately provided with sufficient information detailing the factual basis supporting his conviction for aiding and abetting the killings perpetrated at Mugombwa Church and dismisses Ndayambaje’s appeal in this respect."

Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, paras. 150-151, 159-161:

"150. Likewise, Ndahimana fails to demonstrate an error in the Trial Chamber’s finding that “his attendance at meetings held at Nyange parish on the days prior to 16 April 1994, amidst the attacks and other circumstances prevailing at the parish and in his commune conveyed the impression of him as an ‘approving spectator.’” ³⁸⁷While the Trial Chamber does not point to any direct evidence in support of this finding, the Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that it was the only reasonable inference that could be drawn from the evidence on Ndahimana’s authority and influence, his repeated meetings with members of the JCE,³⁸⁸ and his failure to publicly object to the killings. In this regard, the Appeals Chamber notes that the Trial Chamber accepted evidence that two of the participants in the 16 April attack³⁸⁹ and another individual present during the attack³⁹⁰ had witnessed Ndahimana’s participation in meetings held with members of the JCE prior to the 16 April attack.³⁹¹

387. Trial Judgement, para. 831.

388. The Appeals Chamber notes that, while repeatedly referring to the “members of the JCE” throughout the Trial Judgement, the Trial Chamber only identified Athanase Seromba, Fulgence Kayishema, and Gaspard Kanyarukiga as members of the JCE. See Trial Judgement, paras. 17, 295, 806.

389. Trial Judgement, paras. 578 (Witness CDL), 590 (Witness CNJ).

390. Trial Judgement, paras. 585, 680, 686 (Witness CBK).

391. Trial Judgement, paras. 191, 282, 295, 297, 667, 674.

151. Finally, the Appeals Chamber finds that Ndahimana’s submission regarding an alleged failure of the Trial Chamber to provide a reasoned opinion lacks any merit. As discussed above,³⁹² the Trial Chamber provided clear and explicit reasons in support of its finding that Ndahimana substantially contributed to the killings perpetrated at Nyange Church on 16 April 1994.

392. See supra, para. 144."

"159. Likewise, Ndahimana fails to demonstrate that it was unreasonable for the Trial Chamber to conclude, despite the absence of direct evidence on the matter, that he knew that the physical destruction of the church using a bulldozer would cause the deaths of the Tutsis who had sought refuge in the church.⁴¹² In the view of the Appeals Chamber, this conclusion was the only reasonable inference that could be drawn from the evidence that Ndahimana: (i) knew that the destruction of the church was decided for the purpose of killing the Tutsis who had locked themselves in; (ii) knew that a bulldozer would be used to that effect; (iii) knew that Tutsi refugees remained in the church; and (iv) was present during the destruction of the church and the killings of the refugees.⁴¹³

412. See Ndahimana Notice of Appeal, para. 62.

413. See Trial Judgement, paras. 673-675, 686, 689, 753, 756, 806, 807, 828. 414 Trial Judgement, para. 831.

160. Finally, the Appeals Chamber considers that while phrases such as “Ndahimana must have known”⁴¹⁴ and “Ndahimana could not ignore”⁴¹⁵, “could not have ignored”⁴¹⁶ or “been ignorant”⁴¹⁷ are not entirely clear,⁴¹⁸ they cannot be reasonably interpreted as denoting a shift in the burden of proof. Rather, the Trial Chamber’s overall reasoning shows that it was convinced that the only reasonable conclusion to be drawn from the evidence was that Ndahimana knew that his presence would have an encouraging effect on the perpetrators of the killings at Nyange Church on 16 April 1994, and knew that the perpetrators intended to commit genocide and extermination as a crime against humanity.⁴¹⁹

415. Trial Judgement, para. 828.

416. Trial Judgement, paras. 828, 831.

417. Trial Judgement, para. 828.

418. Cf. Krstić Appeal Judgement, para. 81.

419. Trial Judgement, paras. 828-832.

161. In light of the foregoing, the Appeals Chamber finds that Ndahimana has failed to demonstrate any error in the Trial Chamber’s conclusion that the only reasonable inference available from the evidence was that he possessed the requisite mens rea to be held responsible for aiding and abetting by tacit approval the killings at Nyange Church on 16 April 1994."

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-TC, Judgement (TC), 22 June 2009, paras. 291-292. But see Appeals Chamber’s findings, Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-A, Judgement (AC), 20 October 2010, paras. 72-80 (Below):

"291. BBB and BCA testimonies corroborated one another. Their recollection of Ndayambaje’s and the authorities in attendance was consistent. Their accounts are supported by the fact that Kalimanzira was a native of Muganza commune and that attending the swearing-in of a bourgmestres and préfets was within his professional duties. This is evidenced by Kalimanzira’s admitted attendance to Alphonse Nteziryayo’s swearing-in ceremony on 21 June 1994.313 The Chamber finds that the slight discrepancies in their evidence raised by the Defence are insignificant and do not undermine their credibility.Having carefully considered their evidence, the Chamber considers BBB and BCA’s evidence to be reliable. The Chamber accepts that Ndayambaje spoke at the meeting, particularly given that its purpose was to inaugurate him as bourgmestre. Although Kalimanzira is not alleged to have spoken at the meeting, the Chamber finds that he was present and failed to take exception to Ndayambaje’s remarks. The Chamber also believes BBB and BCA’s evidence that Tutsis were killed following the inauguration ceremony.

292. The Chamber finds that the only reasonable conclusion that can be drawn from the evidence is that Kalimanzira knew that Ndayambaje’s speech would instigate the persons present during this meeting to kill Tutsis and that this instigation would serve as a factor substantially contributing to the conduct of those persons who actually committed killings of Tutsis. The Chamber also finds that Kalimanzira’s presence during Ndayambaje’s speech lent moral support to Ndayambaje’s instigation of genocide. As a well-respected authority figure in Butare, particularly as a native of Muganza commune, and as a high-level government official, Kalimanzira’s moral support was a factor substantially contributing to the commission of this crime. Given their relative positions of authority and responsibilities, Kalimanzira must have known that Ndayambaje and the audience would interpret his presence during Ndayambaje’s speech as a form of support, encouragement, and tacit approval, for Ndayambaje’s instigation of acts of genocide, and that his presence during Ndayambaje’s speech would therefore have the effect of substantially contributing to the killings which followed."

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-A, Judgement (AC), 20 October 2010, paras. 72-80:

"72. The Trial Chamber convicted Kalimanzira for aiding and abetting genocide, in part, based on his presence at the 22 June 1994 inauguration of Elie Ndayambaje as bourgmestre of Muganza Commune, Butare Prefecture, during which Ndayambaje instigated the killing of Tutsis.194 The Trial Chamber found that, by his presence, Kalimanzira offered moral support to Ndayambaje’s call to kill Tutsis during the ceremony and thereby aided and abetted subsequent killings.195 In making these findings, the Trial Chamber relied on Witnesses BBB and BCA, who attended the ceremony, observed Kalimanzira’s presence, and testified about subsequent killings.196

73. Kalimanzira submits that the Trial Chamber erred in convicting him in relation to this incident.197 In this section, the Appeals Chamber will consider whether the Trial Chamber erred in the assessment of the evidence of the killings. In this respect, Kalimanzira contends that there is insufficient evidence demonstrating that killings in fact followed the ceremony.198 The Prosecution responds generally that Kalimanzira’s arguments lack merit, but does not address the sufficiency of the evidence relating to the killings.199

74. The Appeals Chamber recalls that "an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime."200 The Appeals Chamber has explained that "[a]n accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime."201 Where this form of aiding and abetting has been a basis of a conviction, "it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered together with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it."202

75. In view of Kalimanzira’s position as directeur de cabinet of the Ministry of Interior, it was reasonable for the Trial Chamber to determine that his silent presence during Ndayamabaje’s inflammatory speech would have offered tacit approval of its message. The basis of Kalimanzira’s conviction, however, rests on the Trial Chamber’s conclusion that Kalimanzira’s tacit approval not only sanctioned Ndayambaje’s message, but in fact substantially contributed to killings which occurred after the ceremony.203

76. As the Trial Chamber noted, Witnesses BBB and BCA attest to killings occurring after the meeting.204 Their accounts regarding these crimes are vague and devoid of any detail. In particular, the extent of Witness BBB’s description of the killings is that "after the speech, people went to sweep their houses, that is to say, to kill those persons."205 Witness BCA’s account is similarly brief: "As was noticed later on, it meant that [Tutsis and Hutus who opposed the government] who had been hidden had to be taken out of their hiding so that they should be killed as well."206

77. The Appeals Chamber, Judge Pocar dissenting, considers that it is unclear from either |account whether the witnesses had first-hand knowledge of the killings or whether their evidence was hearsay. They refer to no particular incident, provide no approximate time-frame for the killings, and do not give any identifying information concerning the assailants or victims. In such circumstances, the Appeals Chamber finds, Judge Pocar dissenting, that it is impossible to determine with any reasonable certainty whether any killings in fact occurred following the meeting and, if so, the degree to which they were related to the ceremony.

78. In the Muvunyi case, the Appeals Chamber reversed a conviction for genocide because the evidence of the killings which underpinned the finding of guilt were based on second- or third-hand testimony that "contain[ed] no detail on any specific incident or the frequency of the attacks."207 The Appeals Chamber, Judge Pocar dissenting, can identify no material distinction between the quality of the evidence in the Muvunyi case and that provided by Witnesses BBB and BCA here with respect to the occurrence of killings.

79. Consequently, the Appeals Chamber, Judge Pocar dissenting, is not persuaded that the Trial Chamber acted reasonably in relying on the evidence of Witnesses BBB and BCA about the subsequent killings. No reasonable trier of fact could have concluded that Tutsis were killed as a result of the ceremony in circumstances where it heard no evidence about even a single incident. Therefore, the Trial Chamber erred in fact in finding that the evidence showed that Kalimanzira’s presence at the inauguration substantially contributed to subsequent acts of genocide. As a result, the Appeals Chamber need not address Kalimanzira’s other arguments under this ground of appeal.

80. For the forgoing reasons, the Appeals Chamber, Judge Pocar dissenting, grants Kalimanzira’s Fifth Ground of Appeal and reverses his conviction for aiding and abetting genocide based on this event."

194 Trial Judgement, paras. 291-293, 739.

195 Trial Judgement, paras. 292, 293.

196 Trial Judgement, para. 291.

197 Kalimanzira Notice of Appeal, paras. 23-29; Kalimanzira Appeal Brief, paras. 92-161.

198 Kalimanzira Appeal Brief, paras. 117-119, 135, 136.

199 Prosecution Response Brief, paras. 75-90. See also T. 14 June 2010 pp. 32-37.

200 Muvunyi Appeal Judgement, para. 79. See also Seromba Appeal Judgement, para. 44; Blagojevi} and Joki} Appeal Judgement, para. 127.

201 Br|anin Appeal Judgement, para. 273. See also Br|anin Appeal Judgement, para. 277.

202 Br|anin Appeal Judgement, para. 277.

203 Trial Judgement, para. 292.

204 Trial Judgement, para. 291. See also T. 16 June 2008 p. 20; T. 18 June 2008 pp. 50, 51.

205 T. 16 June 2008 p. 20.

206 T. 18 June 2008 pp. 50, 51.

207 Muvunyi Appeal Judgement, para. 69. See also Muvunyi Appeal Judgement, paras. 68, 70-72.

M.P.19. Evidence that the suspect assisted and interrogated a victim during the perpetration of the crime.

A. Legal source/authority and evidence:

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."

M.P.20. Evidence that the suspect had the capacity but did not stop the perpetrators from committing the crime.

A. Legal source/authority and evidence:

"2189. In finding Nsabimana responsible under Article 6(1) of the Statute for aiding and abetting by omission, the Trial Chamber found that, in his capacity as prefect, Nsabimana had the legal duty to provide assistance to people in danger, to ensure the tranquillity, public order, and security of people, and to protect civilians, including the wounded and sick, against acts or threats of violence.⁵⁰⁸⁵ It further held that, by refusing to take action in the midst of the continuing attacks at the prefectoral office, Nsabimana assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the perpetration of their attacks, that his failure to act had a substantial effect on the realisation of their crimes,⁵⁰⁸⁶ and that he had the means available to him to “forestall these harms, but he did nothing”.⁵⁰⁸⁷

5085. See Trial Judgement, paras. 5893-5899.

5086. Trial Judgement, para. 5900. See also ibid., paras. 5903, 5906, 5972.

5087. See Trial Judgement, para. 5903. See also ibid., para. 5972.

2190. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that he had a legal duty to act,⁵⁰⁸⁸ that his omission substantially assisted the perpetration of the crimes,⁵⁰⁸⁹ and that he had the ability to act.⁵⁰⁹⁰ The Appeals Chamber will address these arguments in turn.

5088. Nsabimana Notice of Appeal, paras. 80-89; Nsabimana Appeal Brief, paras. 308, 309, 312, 322-327, 331, 335, 341-344, 391, 392.

5089. Nsabimana Appeal Brief, paras. 483, 496.

5090. Nsabimana Notice of Appeal, paras. 94-104; Nsabimana Appeal Brief, paras. 310-321, 331-340, 342-348, 366-398. See also Nsabimana Reply Brief, paras. 135-152; AT. 16 April 2015 pp. 46-49.

2191. The Trial Chamber found that Nsabimana’s legal duty to act as a prefect was based on: (i) Article 256 of the Rwandan Penal Code which imposed on every Rwandan citizen a duty to provide assistance to people in danger;⁵⁰⁹¹ (ii) Rwandan domestic law which imposed on the prefect an obligation to ensure the tranquillity, public order, and security of people within the prefecture;⁵⁰⁹² and (iii) Articles 7 and 13 of Additional Protocol II to the Geneva Conventions which imposed a legal duty on Nsabimana to protect civilians, including the wounded and sick, against acts or threats of violence.⁵⁰⁹³

5091. Trial Judgement, para. 5893.

5092. Trial Judgement, para. 5894, referring to Exhibit D468 (Law of 11 March 1975, Structure and Functioning of the Préfecture) (“11 March 1975 Law”), Article 8(2). The Trial Chamber found that it did not need to resolve the issue as to whether the legal duty had to be mandated by a rule of criminal law given that “Nsabimana enjoyed a legal duty from additional, and distinct, sources of law”. See ibid., fn. 14751.

5093. Trial Judgement, paras. 5897-5899. See also ibid., paras. 5895, 5896.

5094. Nsabimana Notice of Appeal, paras. 83-89; Nsabimana Appeal Brief, paras. 308, 309, 312, 322-326, 335, 341, 342, 344.

2192. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that Article 256 of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act.⁵⁰⁹⁴ He contends that individual responsibility by omission under Article 6(1) of the Statute can only be incurred where the alleged omission is punishable under a rule of criminal ^law5095 and that the Trial Chamber failed to indicate the legal sanction provided under such texts.⁵⁰⁹⁶

5095. Nsabimana Notice of Appeal, paras. 81, 82; Nsabimana Appeal Brief, paras. 309, 322, referring to Ntagerura et al. Trial Judgement, para. 659.

5096. Nsabimana Notice of Appeal, paras. 83, 84; Nsabimana Appeal Brief, para. 323.

2193. The Prosecution responds that the Trial Chamber did not err in finding that Nsabimana had a legal duty to act.⁵⁰⁹⁷ In particular, it contends that Nsabimana misconstrues the law and that the jurisprudence is not settled as to whether the legal duty to act must stem from a rule of criminal law.⁵⁰⁹⁸ In the alternative, the Prosecution argues that the Trial Chamber found that one of the sources of Nsabimana’s duty to act was criminal law.⁵⁰⁹⁹

5097. Prosecution Response Brief, paras. 1342-1353, 1360, 1362, 1363, 1366-1370. See also AT. 16 April 2015 p. 56.

5098. Prosecution Response Brief, paras. 1343, 1344, 1350, 1351, 1362, 1366, referring, inter alia, to Tadić Appeal Judgement, para. 188, Ntagerura et al. Appeal Judgement, paras. 334, 335, Mrkšić and [ljivančanin Appeal Judgement, paras. 151, 154, Galić Appeal Judgement, para. 175. The Prosecution asserts that the approach of the Appeals Chamber is rather that, irrespective of the source of the duty, the legal duty to act must be one whose breach gives rise to individual criminal responsibility. See ibid., paras. 1345, 1352.

5099. Prosecution Response Brief, para. 1353.

2194. The Appeals Chamber notes that Nsabimana seeks to substantiate his claim that the Trial Chamber erred in finding that Article 256 of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act by arguing that criminal liability for failure to discharge a legal duty must derive from a duty imposed by criminal law and that the Trial Chamber failed to indicate the legal sanction provided under such texts.⁵¹⁰⁰ The question of whether criminal liability for failure to discharge a legal duty to act must derive from a rule entailing individual criminal responsibility has never been examined in the jurisprudence of the Tribunal and the ICTY.⁵¹⁰¹ Nonetheless, the Appeals Chamber finds it unnecessary to make a determination on this issue in the present case as the Trial Chamber found that Nsabimana’s duty to act stemmed notably from Rwandan criminal law.⁵¹⁰² Nsabimana fails to demonstrate that the Trial Chamber erred in relying on Article 256 of the Rwandan Penal Code or that it was under the obligation to specify the criminal sanction incurred from the violation of this provision.

5100. The Appeals Chamber observes that Nsabimana almost exclusively develops his contentions by arguing that he lacked the material ability to act. See, e.g., Nsabimana Appeal Brief, paras. 311-321, 331-348. These arguments are discussed in detail below. See infra, Section VI.D.1(c).

5101. See Mrkšić and [ljivančanin Appeal Judgement, para. 151 (“The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility. The Appeals Chamber further recalls that Šljivančanin’s duty to protect the prisoners of war was imposed by the laws and customs of war. Thus, the Appeals Chamber considers that Šljivančanin’s breach of such duty gives rise to his individual criminal responsibility. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.”); Ntagerura et al. Appeal Judgement, paras. 334, 335.

5102. The Trial Chamber also relied on provisions of the laws and customs of war which it considered give rise to individual criminal responsibility in case of violation of such provisions. See Trial Judgement, para. 5899 (“In the Chamber’s view, the criminalisation of individual conduct encompasses the Geneva Conventions in their entirety, including Articles 7 and 13 of Additional Protocol II.”). The Appeals Chamber declines to consider proprio motu the correctness of this legal statement in light of the Trial Chamber’s reliance on the Rwandan Penal Code.

2195. Accordingly, the Appeals Chamber dismisses Nsabimana’s contention that the Trial Chamber erred in finding that a legal duty existed that could sustain his criminal responsibility under Article 6(1) of the Statute for aiding and abetting by omission.

2196. As noted above, the Trial Chamber found that by refusing to take action in the midst of the continuing attacks at the Butare Prefecture Office, Nsabimana assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the perpetration of their attacks and that his “failure to act had a substantial effect on the realisation of these crimes.”⁵¹⁰³ The Trial Chamber relied, in part, on the evidence of Witnesses QCB, SJ, SU, SS, and RE to conclude that, “ a lthough many people took refuge at the Butare Prefecture Office precisely because they thought the préfet would protect them, Nsabimana refused to help.”⁵¹⁰⁴ It further stated that Nsabimana’s “attitude in this respect was evidenced by Witness TQ who approached Nsabimana at the Butare Prefecture Office asking for help in burying the bodies of orphans that had been killed at the school complex” and recalled that “Nsabimana told Witness TQ that he was a madman.”⁵¹⁰⁵ The Trial Chamber also noted evidence from Witness SS that soldiers prevented attacks at the prefectoral office and determined that, " had Nsabimana posted gendarmes or soldiers sometime prior to 5-15 June 1994, he could have prevented the mass killing and rape, at least in part, at the Butare Prefecture Office ."⁵¹⁰⁶

5103. Trial Judgement, para. 5900. See also supra, para. 2189.

5104. Trial Judgement, para. 5900 (internal reference omitted).

5105. Trial Judgement, para. 5900 (internal reference omitted).

5106. Trial Judgement, para. 5900.

2197. Nsabimana contends that Witness TQ’s evidence concerned the abduction of orphans at the Groupe scolaire rather than the abduction and killing of refugees from the prefectoral office, and argues that Witness TQ’s evidence on an alleged conversation with him about burying the orphans is not believable.⁵¹⁰⁷ He submits that the Trial Chamber therefore erred in relying on this evidence in finding that he assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the perpetration of their attacks.⁵¹⁰⁸

5107. Nsabimana Appeal Brief, paras. 209, 212-215.

5108. Nsabimana Appeal Brief, paras. 209, 213-215.

2198. The Prosecution argues that the Trial Chamber reasonably assessed Witness TQ’s evidence and accepted it as credible and consistent.⁵¹⁰⁹

5109. Prosecution Response Brief, paras. 1319, 1321.

2199. The Appeals Chamber finds that Nsabimana’s contentions concerning the analysis of Witness TQ’s evidence fail to identify an error that could invalidate the verdict or could have occasioned a miscarriage of justice. They do not demonstrate that the Trial Chamber’s reliance on Witness TQ’s evidence was material to its determination that Nsabimana’s omission substantially assisted Nyiramasuhuko, Ntahobali, and Interahamwe in the commission of crimes against Tutsis who had sought refuge at the prefectoral office.⁵¹¹⁰ The Trial Judgement reveals that Witness TQ’s evidence was considered as illustrative of Nsabimana’s indifference toward victims of attacks generally, offering circumstantial corroboration of evidence from multiple witnesses that Nsabimana refused to assist refugees at the prefectoral office notwithstanding the fact that he received pleas for assistance from them.⁵¹¹¹

5110. See Trial Judgement, para. 5900.

5111. See Trial Judgement, para. 5900.

2200. In light of Nsabimana’s failure to identify any error that could invalidate the verdict or could have occasioned a miscarriage of justice, the Appeals Chamber declines to consider his contentions further.

2201. The Trial Chamber, relying on various sources of Rwandan law, observed that Nsabimana, in his capacity as prefect, had the power to request the intervention of the Rwandan army to restore public order and the ability to verbally request the intervention of the gendarmerie.⁵¹¹² It further found that “Nsabimana in fact requisitioned forces around 5-15 June 1994”, that the placement of five to six soldiers at the prefectoral office “forestalled attacks against those taking refuge” there, and that these conclusions demonstrated that Nsabimana, as prefect, “had the ability to requisition forces that could forestall the attacks.”⁵¹¹³ The Trial Chamber considered that Nsabimana failed to prevent ongoing attacks at the prefectoral office “for a significant period between the end of April and mid-June 1994” even though “means were available to Nsabimana to fulfil his duty to forestall these harms”.⁵¹¹⁴

5112. See Trial Judgement, para. 5901, referring to Exhibit D468 (11 March 1975 Law), Art. 11, Exhibit D583 (Law of 23 January 1974, Création de la Gendarmerie) (“23 January 1974 Law”), Section 2, Art. 32.

5113. Trial Judgement, para. 5902. See also ibid., para. 5906.

5114. Trial Judgement, para. 5903. See also ibid., para. 5906.

2202. Nsabimana submits that the Trial Chamber, in finding that he had the ability to act, failed to examine whether he had “the ability and the capacity to act in the specific circumstances of the case.”⁵¹¹⁵ He argues that no evidence was adduced to demonstrate that he had the means or capacity to discharge his obligations to protect civilians prior to June 1994.⁵¹¹⁶ In his view, the Trial Chamber did not consider that soldiers or gendarmes from Butare Prefecture participated in the perpetration of crimes and how this impacted his ability to act and that the security personnel he eventually posted at the prefectoral office in June 1994 were not from the prefecture.⁵¹¹⁷ In light of all these considerations, Nsabimana suggests that the existence of a prefect’s “theoretically vested” powers prescribed by Rwandan law is insufficient to establish that he had the practical ability to exercise such powers from April to mid-June 1994 ⁵¹¹⁸ and that no reasonable trier of fact could have found that he had the ability to act.⁵¹¹⁹

5115. Nsabimana Appeal Brief, paras. 310-321, 331-338, 342-347, 366-397. See also Nsabimana Reply Brief, paras. 135-152; AT. 16 April 2015 pp. 46-49.

5116. Nsabimana Appeal Brief, paras. 316-320, 334, 343, 368, 369. See also Nsabimana Reply Brief, paras. 136, 137. Nsabimana stresses that apart from gendarmes, and to a certain extent soldiers, the prefect cannot requisition any other force to maintain peace and security. See Nsabimana Appeal Brief, para. 318. Nsabimana similarly contends that he did not have the ability to discharge his duties pursuant to Article 256 of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II of the Geneva Conventions. See ibid., paras. 331, 332, 335, 336, 342, 344, 347. See also AT. 16 April 2015 p. 48.

5117. Nsabimana Appeal Brief, paras. 314, 319; Nsabimana Reply Brief, paras. 140-143, 145, 148-151. Nsabimana recalls that the Nsabimana and Nteziryayo Indictment and some Prosecution witnesses alleged that the Rwandan Armed Forces were involved in crimes, and that several officers have been convicted in that regard. See Nsabimana Appeal Brief, paras. 375-383. See also AT. 16 April 2015 pp. 47, 48.

5118. Nsabimana Appeal Brief, paras. 312, 313, 337, 363, 367, referring, inter alia, to Exhibit D468 (11 March 1975 Law), Art. 11, Exhibit D583 (23 January 1974 Law), Art. 32. While Nsabimana acknowledges that Rwandan law empowered the prefect to requisition the Rwandan Armed Forces, he contends that this text was not sufficient for the Trial Chamber to conclude that he had the ability to requisition the Rwandan Armed Forces or post soldiers prior to June 1994. See ibid., paras. 316, 317, 320, 367-369, 392.

5119. Nsabimana Appeal Brief, paras. 319, 340, 383.

2203. Furthermore, Nsabimana contends that his ability to post soldiers at the prefectoral office around 5 June 1994 does not necessarily mean that he had the ability to do so prior to that date.⁵¹²⁰ He submits that the Trial Chamber incorrectly characterised the positioning of members of the Rwandan army at the prefectoral office around 5 to 15 June 1994 as a “requisition” within the meaning of Rwandan law.⁵¹²¹ Finally, Nsabimana submits that he “did his best”, despite the lack or inadequacy of resources, to discharge his duty to protect civilians.⁵¹²² He asserts that, in addition to getting protection for the prefectoral office, he took many other actions to save the lives of civilians, and did not hesitate to protect people when he was able to do so.⁵¹²³

5120. Nsabimana Appeal Brief, para. 316; Nsabimana Reply Brief, para. 144.

5121. Nsabimana Appeal Brief, paras. 364, 366, 384-397. See also Nsabimana Reply Brief, para. 147.

5122. Nsabimana Appeal Brief, paras. 339, 345, 346.

5123. Nsabimana Appeal Brief, paras. 339, 345, 346. Nsabimana notes that: (i) some Prosecution and Defence witnesses testified that refugees at the Butare Prefecture Office received food, blankets, and other items on various occasions; (ii) he helped the Rumiya family and other individuals, including women called Josée, Immaculée Mukantaganira, and Madeleine Mukakagaba; and (iii) he participated in the evacuation of orphans, including 600 children from the Groupe scolaire. See ibid., para. 346.

5124. Prosecution Response Brief, paras. 1354-1356, 1376. See also AT. 16 April 2015 pp. 59, 60.

2204. The Prosecution responds that the Trial Chamber correctly found that Nsabimana had the material ability to act, as demonstrated by his requisition of forces to protect refugees at the prefectoral office around 5 to 15 June 1994.⁵¹²⁴ It submits that, contrary to Nsabimana’s arguments, the Trial Chamber did enquire into the means available to Nsabimana to act.⁵¹²⁵ According to the Prosecution, the fact that some gendarmes and soldiers participated in the killings, or whether soldiers originated from Butare Prefecture, did not detract from his ability to act.⁵¹²⁶ It argues that, given that the Trial Chamber’s task was to assess Nsabimana’s legal power to act, the exercise of his power, and the authorities’ compliance with his requests, the Trial Chamber was not required to assess whether soldiers were involved in crimes and that the issue is not whether Nsabimana’s request for soldiers amounted to a “requisition” under Rwandan law.⁵¹²⁷

5125. Prosecution Response Brief, para. 1377.

5126. Prosecution Response Brief, para. 1378.

5127. Prosecution Response Brief, paras. 1356, 1379. The Prosecution notes that the colonels responded to Nsabimana’s oral request because he was a prefect, thus demonstrating his material ability to act. See ibid., paras. 1356, 1380. It further points out that when Nsabimana orally requested military personal, his request was complied with and soldiers were posted at the prefectoral office for the purpose of offering protection. See idem.

2205. The Appeals Chamber recalls that aiding and abetting by omission necessarily requires that the accused had the ability to act, such that there were means available to the accused to fulfil his duty.⁵¹²⁸

5128. Mrkšić and [ljivančanin Appeal Judgement, para. 154, referring to Ntagerura et al. Appeal Judgement, para. 335. See also ibid., paras. 49, 82.

2206. In the present case, the Trial Chamber observed that, as the prefect of Butare, Nsabimana “ha d the power to request the intervention of the Armed Forces to restore public order” and that he could “verbally request the intervention of the National Gendarmerie pursuant to the Rwandan Law on the creation of the Gendarmerie.”⁵¹²⁹ Nsabimana does not dispute the validity of this finding and the Appeals Chamber dismisses his argument that no evidence was adduced to demonstrate his capacity or means to discharge his obligations to protect Tutsi refugees at the prefectoral office.

5129. Trial Judgement, para. 5901, referring to Exhibit D468 (11 March 1975 Law), Art. 11, Exhibit D583 (23 January 1974 Law), Section 2, Art. 32.

2207. The Appeals Chamber is also not persuaded that the Trial Chamber erred in simply assessing Nsabimana’s “theoretically vested” powers without considering whether he had the ability and the capacity to act in the specific circumstances of the case. The Trial Chamber properly assessed whether a possibility was open to Nsabimana to call on the Rwandan army or the gendarmes to protect refugees and found that:

Nsabimana in fact requisitioned forces around 5-15 June 1994. At that time, 5-6 soldiers were seconded to the Butare Prefecture Office under the command of a female lieutenant.

The evidence establishes that these soldiers forestalled attacks against those taking refuge at the Butare préfecture office. This shows that Nsabimana, pursuant to his powers as préfet, had the ability to requisition forces that could forestall the attacks.⁵¹³⁰

Having made this assessment, the Trial Chamber then determined that “Nsabimana failed to take any steps to prevent the ongoing attacks at the Butare Prefecture Office for a significant period between the end of April and mid-June 1994.”⁵¹³¹

5130. Trial Judgement, para. 5902 (internal reference omitted).

5131. Trial Judgement, para. 5903.

2208. In the view of the Appeals Chamber, it was open to a reasonable trier of fact to rely on the actual positioning of soldiers or gendarmes at the prefectoral office, at Nsabimana’s request, in June 1994 to find that he had the ability to take steps to prevent the attacks between the end of April and mid-June 1994. The Appeals Chamber is not persuaded by Nsabimana’s contention that the Trial Chamber failed to sufficiently consider that soldiers were participating in attacks in Butare Prefecture, which, according to him, should have raised doubts about his ability to requisition them earlier than June 1994. Nsabimana ignores evidence referred to throughout the Trial Judgement indicating the Trial Chamber’s awareness that soldiers and/or gendarmes participated in attacks in Butare Prefecture and at the prefectoral office specifically.⁵¹³² Likewise, Nsabimana fails to demonstrate why the Trial Chamber was required to consider whether the security forces ultimately placed at the prefectoral office were not from Butare Prefecture.

5132. See, e.g., Trial Judgement, paras. 2190, 2191, 2206, 2211, 2214, 2218, 2250, 2276, 2279, 2287, 2307, 2309, 2339, 2711, 2771, 2773, 2781, 2805, 2807.

2209. Furthermore, the Appeals Chamber does not find merit in Nsabimana’s contention that the Trial Chamber erred in finding that he “requisition ed ” soldiers according to Rwandan law. Nsabimana appears to argue that his ability to obtain security forces in June 1994 resulted from the coincidental confluence of circumstances, rather than his ability to do so based on Rwandan law.⁵¹³³ However, the Trial Chamber clearly considered the evidence of Nsabimana and others as to how security forces were obtained for the purpose of protecting refugees at the prefectoral office between 5 and 15 June 1994.⁵¹³⁴ Nsabimana does not demonstrate on appeal that, in light of the record, no reasonable trier of fact could have found that he had the de jure authority as prefect and the actual capacity to obtain security for the refugees at the prefectoral office between the end of April and mid-June 1994.

5133. Nsabimana avers that, according to Article 32 of the 11 March 1975 Law, the prefect may make a verbal requisition but must confirm this in writing. See Nsabimana Appeal Brief, para. 393. Nsabimana submits, however, that his actions did not amount to a requisition because: (i) he used his own relationships, namely through Colonels Munyengango and Mugemanyi, to have soldiers from outside Butare posted at the prefectoral office; (ii) the Trial Chamber did not ascertain whether gendarmes or soldiers were posted; and (iii) no evidence was adduced to establish that the Rwandan army hierarchy had received a written requisition from Nsabimana. See ibid., paras. 387-397.

5134. Trial Judgement, paras. 2807-2812.

2210. Finally, as regards Nsabimana’s arguments that he “did his best” to protect refugees, the Appeals Chamber notes that he simply points to his efforts to assist Tutsis without demonstrating how the Trial Chamber erred. The Trial Chamber considered his efforts when it assessed mitigating factors in relation to his sentence.⁵¹³⁵ Nsabimana does not demonstrate that the Trial Chamber ignored this evidence or that it prevented a reasonable trier of fact from concluding that he had the ability to act in an attempt to forestall crimes at the prefectoral office between the end of April and mid-June 1994.

5135. See Trial Judgement, para. 6232.

2211. Based on the foregoing, the Appeals Chamber dismisses Nsabimana’s arguments regarding his ability to act as it pertains to his responsibility for aiding and abetting by omission."

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, para. 5890-5906:

"5890. The evidence does not support an argument that Nsabimana committed, planned, ordered, or instigated the crimes perpetrated at the BPO. The Chamber will therefore address only whether he aided and abetted these crimes. An accused may be responsible for aiding and abetting in two different manners: (1) by positive acts including, providing tacit approval and encouragement; or (2) by omission, namely failing to discharge a legal duty to act. Aiding and abetting by tacit approval and encouragement appears to require the presence of the accused at or near the scene of the crime. Here, it was not contested that Nsabimana was absent from the BPO at night when the attacks were perpetrated by Nyiramasuhuko, Ntahobali and Interahamwe. Therefore, aiding and abetting by tacit approval or encouragement is inapplicable to Nsabimana’s conduct.

5891. However, aiding and abetting by omission may serve as a basis for liability even where the accused is not present at or near the scene of the crime. Pursuant to this form of responsibility, the failure to discharge a legal duty must assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect on the realisation of that crime. This implicitly requires that the accused had the ability to act, such that the means were available to the accused to fulfil his or her duty. The aider and abettor must know that his or her omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal perpetrator.

5892. The Prosecution argues that Nsabimana is responsible for the abductions, rapes and killings at the BPO when those taking refuge there should have been under his protection.The Prosecution referred to the Rwandan Organic Law which, it argued, gives the préfet a legal duty to ensure the peace, public order and security of persons and property, including those taking refuge at the BPO.

Legal Duty to Act

5893. A prerequisite of criminal liability for aiding and abetting by omission is a legal duty to act.The Chamber notes that the Rwandan Penal Code imposes an obligation on every Rwandan citizen to provide assistance to persons in danger where it would not cause risk to oneself, and failure to do so is a criminal offence.This obligation was considered by the Trial Chamber in Rutaganira at sentencing. Although the Rwandan Penal Code provides a justification for failure to act, namely where there is risk to oneself, the Rutaganira Trial Chamber held that "[v]iolence to physical well-being suffered by thousands of people during the said events affects the very fundamental interests of Humanity as a whole, and the protection of such interests cannot be counterbalanced by the mere personal risk that may have been faced by any person in a position of authority who failed to act in order to assist people whose lives were in danger." In Rutaganira, the Chamber considered that the accused in that case "was under a duty to provide assistance to people in danger." Likewise, in the present case, the Chamber finds that Préfet Nsabimana was under a duty to provide assistance to people in danger, pursuant to Article 256 of the Rwandan Penal Code.

5894. Further, under Rwandan domestic law, Nsabimana had an obligation to ensure the tranquillity, public order, and security of people and property within his préfecture. The Appeals Chamber in the Ntagerura et al. case held that the Blaskić Appeal Judgement did not address, and it had not been settled at that time, whether the legal obligation to act must stem from a rule of criminal law, or whether any legal obligation is sufficient. In the circumstances of that case, the Appeals Chamber found that it was not necessary for it to decide the issue.

5895. The Chamber further notes that a legal duty to act may also be imposed by the laws and customs of war. In Mrkšić and ?ljivančanin, the ICTY Appeals Chamber held that Article 13 of Geneva Convention III imposes a duty to protect prisoners of war. Likewise, the Blaskić Appeals Judgement noted that Article 27 of Geneva Convention IV imposes a legal duty to protect civilians against acts of violence. More specifically, it held that Blaskić was under a duty imposed by the laws or customs of war to care for protected persons put in danger, and to intervene and alleviate that danger.

5896. Article 13 of Geneva Convention III and Article 27 of Geneva Convention IV are limited in application to armed conflict of an international nature. However, Additional Protocol II to the Geneva Conventions contains similar obligations and is applicable to noninternational armed conflicts.

5897. The Chamber notes that Article 7 of Additional Protocol II to the Geneva Conventions provides: "All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected." In addition, Article 13 of Additional Protocol II states: 1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

5898. It was clear that the Tutsis taking refuge at the BPO were civilians and that many of them were sick and injured.

5899. Although these provisions do not explicitly reference individual criminal liability, the Chamber considers they are applicable to the situation prevailing at the BPO from the end of April to mid-June 1994. The Chamber recalls the ICTY Appeals Chamber’s holding that "customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules of protection on the protection of victims of internal armed conflict".The Chamber considers the criminalisation of individual conduct, includes, but is not limited to Article 3 common to the Geneva Conventions. As the ICTY Appeals Chamber held in Delalić et al.: "Common Article 1 thus imposes upon State parties, upon ratification, an obligation to implement the provisions of the Geneva Conventions in their domestic legislation. This obligation clearly covers the Conventions in their entirety and this obligation thus includes common Article 3."In the Chamber’s view, the criminalisation of individual conduct encompasses the Geneva Conventions in their entirety, including Articles 7 and 13 of Additional Protocol II. Therefore, these provisions impose a legal duty on the Accused to protect civilians, including the wounded and sick, against acts or threats of violence.

Assistance to, and Substantial Effect on, the Perpetration of Crimes

5900. The Chamber has found that Nyiramasuhuko, Ntahobali, Interahamwe and soldiers were responsible for raping numerous Tutsi women and for killing hundreds of Tutsi refugees abducted from the BPO from mid-May until mid-June 1994. Nsabimana was the préfet of Butare during this time period. Although many people took refuge at the BPO precisely because they thought the préfet would protect them, Nsabimana refused to help. Nsabimana in fact requisitioned forces around 5-15 June 1994. At that time, 5-6 soldiers were seconded to the BPO under the command of a female lieutenant. The evidence establishes that these soldiers forestalled attacks against those taking refuge at the Butare préfecture office. This shows that Nsabimana, pursuant to his powers as préfet, had the ability to requisition forces that could forestall the attacks.

5903. Despite this, Nsabimana failed to take any steps to prevent the ongoing attacks at the BPO for a significant period between the end of April and mid-June 1994. Even if the soldiers’ presence may not have been able to stop the attacks altogether, the evidence establishes that their presence would have alleviated the situation of recurring abductions, rapes and killings. These means were available to Nsabimana to fulfil his duty and to forestall these harms, but he did nothing.

Knowledge and Awareness

5904. Nsabimana knew that those taking refuge at the BPO were Tutsis and on multiple occasions, they asked him directly for protection from the ongoing attacks. He knew that they were being abducted, raped and killed. Nsabimana admitted that he was aware of a plan to kill Tutsis, that Tutsis were being killed, and that the militia had been trained for this purpose. Therefore, he was aware of the perpetrators’ genocidal intent.

5905. Furthermore, the Chamber concludes that Nsabimana also knew that his failure to act assisted in the commission of the crimes. Nsabimana knew the attacks were occurring at night when he was not at the BPO and when there were likely to be fewer witnesses. Moreover, he testified that after he learned of the massacres, he would go home at night fearing that the refugees would not be at the BPO when he returned in the morning. Yet, the perpetrators of these attacks were given free reign to repeatedly attack the BPO for a significant period between the end of April and mid-June 1994.

5906. In sum, Nsabimana failed to take action to stop the massacres at the BPO during his tenure as préfet. Although Nsabimana posted gendarmes or soldiers at the BPO around 5-15 June 1994, he was responsible for aiding and abetting genocide for failing to discharge his duty to protect civilians until that time. Noting that Nsabimana was charged with this culpable omission, the Chamber finds him guilty of aiding and abetting genocide."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 paras. 704-705:

"704. The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the Kvocka Trial Judgement para. 256e inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June 1994, while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April 1994, date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."

ICTY

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 627:

"627. In these circumstances it is established, in the finding of the Chamber, that Mile Mrksić both knew that violence and cruel treatment was occurring to the prisoners of war, despite the existing security arrangements he had ordered, and was well aware of the animosity to the prisoners of the TO and paramilitary personnel who had gathered at Ovcara and of their propensity to extreme violence against the prisoners. Yet, he took no action to prevent the continuance of the offences of cruel treatment that had been occurring. He had readily available to him more than adequate military police and other soldiers and adequate officers to ensure that the incidents of mistreatment that had been occurring during the afternoon were not repeated. His omission, or failure to act, in these circumstances, constituted, in the view of the Chamber, aiding and abetting the acts of cruel treatment that continued during the afternoon."

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1543, 1563:

"1543. In the case of Borovcanin there is no evidence before the Trial Chamber of any particular acts on his part which may have constituted aiding and abetting the crimes committed at the Kravica Warehouse. However, the Trial Chamber must also consider if his conduct can properly constitute aiding and abetting by omission. The Trial Chamber recalls the jurisprudence which provides for aiding and abetting by omission. Where a person fails to discharge a legal duty and by this failure he assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime, he may be held criminally responsible. The person must have the ability to act and also must know the essential elements of the crime and that their omission assists the commission of the crime."

vi. Conclusion

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1985-1991:

"1985. The Trial Chamber recalls the jurisprudence that provides for aiding and abetting by omission. Specifically, where a person fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime, he or she may be held criminally responsible. The person must have the ability to act and must know the essential elements of the crime and that his or her omission assists the commission of the crime.

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 63:

"¹⁶² - Tadic Appeal Judgement, para 229; Aleksovski Appeal Judgement, para 164. Celebici Appeal Judgement, para 352.
¹⁶³ - Aleksovski Trial Judgement, para 61, confirmed by the Aleksovski Appeal Judgement, para 164.
¹⁶⁴ - Aleksovski Trial Judgement, para 62; Kunarac Trial Judgement, para 391; Kvocka Trial Judgement, para 256.
¹⁶⁵ - Blaskic Trial Judgement, para 284."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 256:

"256. Aiding or abetting may consist of an act or an omission and may take place before, during, or after the commission of a crime perpetrated by another and be geographically separated therefrom.⁴³⁹ To aid or abet by omission, the failure to act must have had a significant effect on the commission of the crime.⁴⁴⁰"

"⁴³⁹ - Aleksovski Trial Chamber Judgement, para. 62.
⁴⁴⁰ - Blaskic Trial Chamber Judgement, para. 284. Examples are given in Tadic Trial Chamber Judgement, para. 686; Celebici Trial Chamber Judgement, para. 842; Akayesu Trial Chamber Judgement, para. 705."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, paras. 87-88:

"87. Several witnesses testified about the insults, threats, thefts and assaults detainees suffered in the presence of the accused during body searches on 15 and 16 April 1993. The Trial Chamber does not consider it proved that the accused ordered the crimes to be committed; it is however convinced that he aided and abetted in the commission of these acts. In his capacity as prison warden he was clearly in charge of organising the body searches of detainees and of supervising them. By being present during the mistreatment, and yet not objecting to it notwithstanding its systematic nature and the authority he had over its perpetrators, the accused was necessarily aware that such tacit approval would be construed as a sign of his support and encouragement. He thus contributed substantially to the mistreatment. Accordingly, the accused must be held responsible for aiding and abetting under Article 7(1) in the physical and mental abuse which detainees were subjected to during the body searches on 15 and 16 April 1993."

88. Several witnesses spoke of the accused’s participation in the physical violence they suffered during their detention. The testimony of Witnesses L is consistent with that of Witness M. According to them, the abuse they received during their detention was initiated by the accused who led the guards to their cell to beat them. Some of the accused’s comments repeated at trial by the victims went to show that the accused intended to mistreat these detainees and that he had given the guards orders to that effect on several occasions. The accused had even been present on occasion and ordered the guards to go on beating them when they stopped. The Trial Chamber is satisfied beyond reasonable doubt that the accused ordered or instigated and abetted the mistreatment of these witnesses. It is also similarly satisfied that the recurring brutality the two detainees were subsequently subjected to in the absence of the accused was aided and abetted by him. Abuse of this kind was frequent and was committed day and night near the accused’s office so that the accused could hardly not have not been aware of it. Yet he did not oppose or repress it, as his position required. On the contrary, his silence could only be taken as a sign of his approval, given that he participated actively in the initial abuse of these two detainees; the accused could hardly have been unaware that his silence would amount to encouragement to the perpetrators. This silence evinces a culpable intent of aiding and abetting such acts as contemplated in Article 7(1)."

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 , para. 686:

"686. Other examples include the following cases. In United States v. Kurt Goebell et al ("Borkum Island case"), civilians brutalised and killed United States pilots who were paraded through the streets in 1944. Some of the members of the German guard who stood by as civilians injured and killed the pilots were convicted along with the commander who ordered the parading of the troops, the Burgomeister, and the four civilians who took part in the event²¹⁷. In this case, the lack of action on the part of the guards and commander amounted to a sufficient degree of participation for the purposes of criminal liability."

"²¹⁷. Case. no. 12-489, United States v. Kurt Goebell et al., Report, Survey of the Trials of War Crimes Held at Dachau,Germany, 2-3 (15 Sept. 1948)."

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 6:

M.P.20.1. Evidence that the suspect did not report the crime.

A. Legal source/authority and evidence:

Prosecutor v. Milan Milutinovic et.al, Case No. IT-05-87-T, Judgement Vol III (TC), 26 February 2009, para. 627:

"627. Furthermore, Ojdanić had extensive powers to instigate disciplinary proceedings against any other member of the VJ and was obliged to ensure that VJ members who committed offences and infractions against VJ military discipline were held responsible as soon as possible during a state of war. After he issued an order at the start of April 1999 that criminal activities be reported to the Supreme Command Staff, Pavković failed to do so. This under-reporting occurred throughout 1998 and 1999, and Ojdanić was expressly warned by Dimitrijević of such misreporting by Pavković on a number of occasions. Ojdanić did take certain measures in response to Pavković’s actions, including sending members of his Security Administration to find out more information and initiating the 17 May 1999 meeting with Milošević. However, these actions were insufficient to remedy the problem, as discussed above. In light of his knowledge of widespread criminal activity amongst VJ members from the 16 and 17 May meetings, the Arbour letter, the publication of the first indictment, and various prior reports of criminal offences by VJ members, Ojdanić’s request for a response from Pavković was insufficient.1512 Subsequently, when information was again presented to the Supreme Command Staff that crimes were still being committed by VJ personnel in Kosovo in June 1999, Ojdanić stuck to his approach of calling for reports and issuing orders to enhance the operation of the military courts. Again, he did not take disciplinary measures against the 3rd Army Commander, despite the fact that crimes were still not being included in written reports up to the Supreme Command Staff from the 3rd Army. Ojdanić’s failure to take effective measures against Pavković provided practical assistance, encouragement, and moral support to members of the VJ who perpetrated crimes in Kosovo, by sustaining the culture of impunity surrounding the forcible displacement of the Kosovo Albanian population, and by allowing the Commander of the 3rd Army to continue to order operations in Kosovo during which the forcible displacement took place.":

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. […]"

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 842:

M.P.21. Evidence of the presence of a superior on the scene of the crime.

A. Legal source/authority and evidence:

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, para. 824-832:

"4.3.3 Does Presence of Accused Constitute Tacit Approval as Evidence of Aiding and Abetting?

824. The Majority recalls that an accused may be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to that crime.1490 Aiding and abetting by tacit approval and encouragement requires the presence of the accused at or near the scene of the crime.1491

825. In cases where this category of Article 6 (1) liability has been applied, the accused held a position of authority, was physically present on the scene of the crime and his non-intervention was seen as tacit approval and encouragement.1492 The Kayishema and Ruzindana Trial Chamber held that "individual responsibility pursuant to Article 6 (1) is based, in this instance, not on a duty to act, but from the encouragement and support that might be afforded to the principals of the crime."1493 In such cases, the combination of a position of authority and physical presence on the crime scene allows the inference that non-interference by the accused actually amounted to tacit approval and encouragement.1494

826. "Encouragement" and "moral support" are two forms of conduct which may lead to criminal responsibility for aiding and abetting a crime. The encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a "silent spectator" can be construed as tacitly approving or encouraging the crime. In any case, this encouragement or moral support must always substantially contribute to the commission of the crime.1495 As put by the Furundžija Trial Chamber, "[w]hile any spectator can be said to be encouraging a spectacle—an audience being a necessary element of a spectacle—the spectator in these cases was only found to be complicit if his status was such that his presence had a significant legitimising or encouraging effect on the principals."1496

827. According to the jurisprudence, the authority of the accused, combined with his presence at the crime scene, leads to the conclusion that the accused’s conduct substantially contributed to the crime. It thus follows that encouragement and moral support can only form a substantial contribution to a crime when the principal perpetrators are aware of the accused’s presence.1497 In the present case, Ndahimana’s presence on 16 April 1994 has been established beyond reasonable doubt (Chapter III, Section 6.3.3.3).

828. The Majority considers that Ndahimana could not ignore the fact that the victims of the attacks at Nyange parish were Tutsis. For example, evidence relating to 14 April 1994 shows that the accused talked to the refugees and they told him that they had been attacked.1498 The Majority found that Ndahimana came to Nyange parish on the evening of 15 April 1994 and that he had reason to know that a large-scale attack occurred that day. In addition, the Majority found him criminally responsible for the acts committed by the communal police on 15 April 1994 as he had reason to know that they participated in the killings that occurred that day but did not punish them (Chapter IV, Section 3.5.1.3). The mens rea of the "approving spectator" may be deduced from the circumstances, and may include prior concomitant behaviour; for instance, allowing crimes to go

unpunished or providing verbal encouragement to commit such crimes.1499 Additionally, Ndahimana’s presence at the meeting prior to and during the attack of 16 April 1994 shows that Ndahimana could not have ignored, nor been ignorant of the fact that the main perpetrators intended to commit genocide.

829. The "approving spectator" must have a significant status if his or her presence is to have the required effect on the perpetrators.1500 Several witnesses described Ndahimana, the bourgmestre of Kivumu commune, as a person of authority.1501 Taking this into consideration, the Majority concludes that Ndahimana exerted a sense of moral authority over the population of his commune.

830. However, the Majority acknowledges that Ndahimana’s position of authority, in and of itself, would not support a positive finding on criminal responsibility. The requisite mens rea in the more specific case of the "approving spectator" is that the accused knows that his presence would be seen by the perpetrator of the crime as encouragement or support.1502 In this respect, several perpetrators reported the encouraging effect of Ndahimana’s presence at Nyange parish.1503 The Majority found that the accused did not instigate or supervise the attack.1504 In this context, the accused’s presence is circumstantial evidence that can be taken into consideration to establish the mens rea of the approving spectator.1505

831. Ndahimana must have known that his presence during the attack would have a significant encouraging effect on the assailants as he was a person of influence in the commune. In addition, his attendance at meetings held at Nyange parish on the days prior to 16 April 1994, amidst the attacks and other circumstances prevailing at the parish and in his commune conveyed the impression of him as an "approving spectator." Ndahimana did not openly object to the killings, and could not have ignored that this would likely be considered by the assailants as tacit approval of their perpetration of the attacks. Ndahimana knew that the destruction of the church would necessarily cause the death of the Tutsi refugees. In these circumstances, his presence on the scene of the crime substantially contributed to the attack that was launched, the destruction of the church and the death of the numerous refugees inside.1506

832. Grégoire Ndahimana’s conduct as an approving spectator was limited to giving moral support to the principal perpetrators of the crime, which constitutes the actus reus of aiding and abetting.1507 In the Majority’s view, Ndahimana’s participation through aiding and abetting by tacit approval most aptly sums up his criminal conduct. Accordingly, the Majority finds beyond reasonable doubt that Ndahimana is responsible pursuant to Article 6 (1) of the Statute for aiding and abetting the killing of Tutsi refugees in Nyange church on 16 April 1994.

1490 Aleksovski (TC) Judgement, para. 87; Kayishema and Ruzindana (AC) Judgement, paras. 201-202; Akayesu (TC) Judgement, para. 706.

1491 See Brđanin (AC) Judgement, para. 273 (Noting that "[i]n the cases where this category [of conduct amounting to tacit approval and encouragement of the crime] was applied, the accused held a position of authority, he was physically present on the scene of the crime, and his non-intervention was seen as tacit approval and encouragement."). See also, Seromba (TC) Judgement, para. 307; Bagilishema (TC) Judgement, para. 36 ("liability for aiding and abetting as an ‘approving spectator’ presupposes actual presence at the scene of the crime, or at least presence in the immediate vicinity of the scene of the crime.").

1492 Aleksovski (TC) Judgement, para. 87; Kayishema and Ruzindana (AC) Judgement, paras. 201-202; Akayesu (TC) Judgement, para. 706. See also Furundžija (TC) Judgement, paras. 205-207 (Discussing the Synagogue case).

1493 Kayishema and Ruzindana (TC) Judgement, para. 202 (Upheld by Kayishema and Ruzindana (AC) Judgement, paras. 201-202).

1494 Kayishema and Ruzindana (TC) Judgement, para. 200 (Referring to the discussion of the Synagogue case in Furundžija (TC) Judgement, para. 207).

1495 Brđanin (AC) Judgement, para. 277.

1496 Furundžija (TC) Judgement, para. 232.

1497 Kayishema and Ruzindana (AC) Judgement, para. 201; Akayesu (TC) Judgement, paras. 706-707; Furundžija (TC) Judgement, paras. 207-209; Aleksovski (TC) Judgement, para. 88; Bagilishema (TC) Judgement, para. 36; Ndindabahizi (TC) Judgement, para. 457.

1498 See, e.g., Witness ND11: T. 18 January 2011 pp. 31-34, 49-50 (He was told that the accused came to the presbytery and talked to the refugees); Witness ND12: T. 19 January 2011 pp. 4-6, 14-15 (She said that "[a]ll refugees could hear" what was being said. The refugees told Ndahimana that Ndungutse had led an attack against them and the accused responded that "he did not have powers", but he had asked the gendarmes to continue to protect the refugees).

1499 Bagilishema (TC) Judgement, para. 36.

1500 Bagilishema (TC) Judgement, para. 36.

1501 Witness CBS: T. 6 September 2010 p. 46; Witness CBK: T. 4 November 2010 p. 17; Witness ND24: T. 21 February 2011 p. 30 ("All I know, in general terms, is that the bourgmestre was in charge of all of us."); Witness ND3: T. 17 February 2011 p. 18 ("I know that Ndahimana was in a vehicle touring the commune and, in fact, he was the authority in the commune.").

1502 Bagilishema (TC) Judgement, para. 36.

1503 See discussion of testimonies of Witnesses CBR and CDL (Chapter III, Section 6.3.3.2).

1504 The Majority recalls the Dissenting Opinion of Judge Liu, para. 4, as appended to the Seromba (AC) Judgement, which distinguished practical assistance from supervision as follows: "In the present case, Athanase Seromba played a different role. While he accepted the decision of the communal authorities to destroy the church, spoke with a bulldozer driver and uttered words that encouraged him to destroy the church, even giving advice as to the weak side of the church, Athanase Seromba did not "supervise" or "direct" the massacre and he played no role in any separation of Tutsi refugees so that they could be killed."

1505 Bagilishema (TC) Judgement, para. 36.

1506 The Majority recalls the dissenting opinion of Judge Liu, para. 16, as appended to the Seromba (AC) Judgement, which states as follows: "the mere knowledge that the destruction of the church would necessarily cause the death of approximately 1,500 Tutsi refugees does not exactly correlate with ‘an intention to destroy in whole or in part the Tutsis’."

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, paras. 5757-5758:

"5757. In the circumstances, the Chamber is convinced that the only reasonable inference to be drawn is that Ndayambaje came to Mugombwa Church on 20 and 21 April 1994 to encourage the civilians in their attacks, and in this way substantially contributed to the perpetration of the attacks on the Tutsi refugees at Mugombwa Church. The Chamber notes that Ndayambaje exercised considerable moral authority over the population in Muganza commune at the time. As such, the Chamber considers that Ndayambaje’s presence at Mugombwa Church before each attack encouraged the attacks, and the Chamber is satisfied that Ndayambaje knew that his presence would be considered by the assailants as tacit approval of the attack. Given the circumstances as a whole, the Chamber has no doubt that Ndayambaje knew that the assailants possessed genocidal intent, and that he substantially contributed to their attacks.

5758. As such, the Chamber finds Ndayambaje guilty of genocide for aiding and abetting the killing of Tutsi refugees on 20 and 21 April 1994 at Mugombwa Church under Article 6 (1) of the Statute."

Prosecutor v. Paul Bisengimana, Case No. ICTR 00-60-T, Judgement (TC), 13 April 2006, para. 34-35, 38-39:

"34. Mere presence at the crime scene may constitute aiding and abetting where it is demonstrated to have a significant encouraging effect on the principal offender, particularly if the individual standing by was the superior of the principal offender or was otherwise in a position of authority. In those circumstances, an omission may constitute the actus reus of aiding and abetting, provided that this failure to act had a decisive effect on the commission of the crime.

35. However, it is not necessary that the person aiding and abetting the principal offender be present during the commission of the crime."

"38. By his own account, the Accused’s position as bourgmestre meant that he exercised both de jure and de facto authority over all public servants and other holders of public office within Gikoro commune, including, but not limited to, the conseillers de secteur. The conseillers de secteur represented executive power at the secteur level and were responsible for maintaining law and order in their respective secteurs.

39. Paul Bisengimana acknowledges that he had a duty to protect the population, prevent or punish the illegal acts of the perpetrators of the attacks at Musha Church and Ruhanga Complex but that he failed to do so. He admits that he had the means to oppose the killings of Tutsi civilians in Gikoro commune, but that he remained indifferent to the attacks. With respect to the Musha Church massacres, Paul Bisengimana acknowledges that his presence during the attack would have had an encouraging effect on the perpetrators and given them the impression that he endorsed the killing."

Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-01-77-T, Judgement (TC), 18 December 2008, para. 422:

"422. The Chamber will next consider the instructions issued by the Accused. In this respect, the Accused’s position of authority generally, and more specifically over Corporal Irandemba, his guard, who was in charge of the roadblock, is relevant. The Chamber considers that the Accused’s instruction to check identity cards "well" with specific reference to Tutsi, after having seen dead bodies at the roadblock, and in light of the context of widespread and systematic attacks against Tutsi in Rwanda at that time, indicated to those manning the roadblock, his approval of, and support to, the killings. In the circumstances, the Chamber considers that the only reasonable conclusion is that his instruction must have been perceived by the people manning the roadblock as an encouragement to kill Tutsi. Additionally, in view of the Accused’s authority, and the Chamber’s finding that those with Tutsi identity cards were taken aside and killed, the Chamber has no doubt that his encouragement substantially impacted on the perpetrators of the killings of Tutsi at the roadblock. Indeed, checking identity cards was a necessary

step in the process of killing Tutsi at the roadblock and by his instruction that this

be done well, the Accused encouraged the acts of killing which followed."

Prosecutor v. Naser Orić, Case No. IT-03-68-A, Judgement (AC), 30 July 2008, para. 42:

"42. Turning to whether the Trial Chamber applied the theory of aiding and abetting by tacit approval and encouragement, the Appeals Chamber notes that in cases where this theory has been applied, the combination of a position of authority and physical presence at the crime scene allowed the inference that non-interference by the accused actually amounted to tacit approval and encouragement.97 […]

97 Brdanin Appeal Judgement, para. 273, with references at fns. 553, 555. See also Kayishema and Ruzindana Appeal Judgement, paras. 201-202.

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Judgement (AC), 3 April 2007 paras. 273 and 277:

"273. The Trial Chamber might have intended to apply in this case the theory of aiding and abetting by tacit approval and encouragement. An accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime. This form of aiding and abetting is not, strictly speaking, criminal responsibility for omission. In the cases where this category was applied, the accused held a position of authority, he was physically present on the scene of the crime, and his non-intervention was seen as tacit approval and encouragement. The Trial Chamber in Kayishema and Ruzindana held that "individual responsibility pursuant to Article 6(1) [that is, individual criminal responsibility under 7(1) of the Tribunal’s Statute] is based, in this instance, not on a duty to act, but from the encouragement and support that might be afforded to the principals of the crime from such an omission." In such cases the combination of a position of authority and physical presence on the crime scene allowed the inference that non-interference bythe accused actually amounted to tacit approval and encouragement."

"277. It is recognized in the jurisprudence of the Tribunal that "encouragement" and "moral support" are two forms of conduct which may lead to criminal responsibility for aiding and abetting a crime. As recalled above, the encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a "silent spectator" can be construed as the tacit approval or encouragement of the crime. In any case, the contribution to the crime of this encouragement or moral support must always be substantial. As the Furundžija Trial Chamber put it, "[w]hile any spectator can be said to be encouraging a spectacle – an audience being a necessary element of a spectacle – the spectator in these cases was only found to be complicit if his status was such that his presence had a significant legitimising or encouraging effect on the principals". In cases where tacit approval or encouragement has been found to be the basis for criminal responsibility, it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered together with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it. 565 It follows that encouragement and moral support can only form a substantial contribution to a crime when the principal perpetrators are aware of it. Accordingly, the Appeals Chamber finds that, in this case, encouragement and moral support could only have had a substantial effect if the camp personnel committing torture were aware that Brđanin made encouraging and supporting statements or encouraged and supported through his inaction."

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. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 600:

"600. An accused’s position of superior authority, in and of itself, does not suffice to conclude that the accused, by his or her mere presence at the scene of the crime, encouraged or supported the offence. The presence of the accused at the crime site, however, may be perceived as a significant indicium of his or her encouragement or support. The requisite mens rea may be established from an assessment of the circumstances, including the accused’s prior and similar behaviour, failure to punish or verbal encouragement."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 769:

"769. An accused's position of superior authority, in and of itself, does not suffice to conclude that the accused, by his or her mere presence at the scene of the crime, encouraged or supported the offence. The presence of the accused at the crime site, however, may be perceived as a significant indicium of his or her encouragement or support.¹⁰¹¹ The requisite mens rea may be established from an assessment of the circumstances, including the accused's prior and similar behaviour, failure to punish or verbal encouragement.¹⁰¹²"

Ruzindana, Judgment (TC), para. 201.

1012- Semanza, Judgment (TC), para. 388; Kayishema and Ruzindana, Judgment (TC), paras. 201 and 205. Aleksovski, Judgment (AC), para 162; Vasiljevic, Judgment (TC), para. 71; Krnojelac, Judgment (TC), paras. 75 and 90; Kvocka, Judgment (TC), paras. 255 and 262; Kunarac, Judgment (TC), para. 392; Furundzija, Judgment (TC), para. 249. But see Ntakirutimana and Ntakirutimana, Judgment (TC), para. 787 (stating that aiding and abetting, pursuant to Article 6(1) requires proof that an accused possessed the mens rea of the underlying crime, for example, the specific intent of genocide); Akayesu, (TC), paras. 485 and 547. The Trial Chamber observes that these cases do not provide any explanation for treating the mens rea requirement for aiding and abetting, pursuant to Article 6(1) differently than the requirement for complicity in genocide, which does not require proof of the mens rea of the underlying crime.)"

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para 63:

"63. "Aiding and Abetting" is defined as rendering a substantial contribution to the commission of a crime. The contribution can consist of practical assistance, encouragement or moral support.¹⁶² It is not necessary to prove that a cause-effect relationship existed between the participation and the commission of the crime.¹⁶³ The participation may happen before, during or after the commission of a crime.¹⁶⁴ Aiding and abetting can also be committed through an omission as long as the omission had a significant effect on the commission of the crime and was accompanied by the necessary mens rea.¹⁶⁵ An individual’s position of superior authority does not suffice to conclude from his mere presence on 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 for encouragement or support.¹⁶⁶ Regarding concomitant behaviour, the Furundžija Trial Chamber held that the accused had assisted another accused in the commission of a rape because he was continuing with the interrogation of the victim while being raped.¹⁶⁷ Concerning the mens rea it is required that the aider and abettor must have known, in the sense of being aware, that he was assisting in the commission of the crime.¹⁶⁸ It has to be shown that he was aware of the essential elements of the crime, which also means the necessary mens rea on the part of the principal.¹⁶⁹ The abettor need not have known the precise crime being committed as long as he was aware that one of a number of crimes would be committed, including the one actually perpetrated.¹⁷⁰"

"162 - Tadic Appeal Judgement, para 229; Aleksovski Appeal Judgement, para 164. Celebici Appeal Judgement, para 352.
163 - Aleksovski Trial Judgement, para 61, confirmed by the Aleksovski Appeal Judgement, para 164.
164 - Aleksovski Trial Judgement, para 62; Kunarac Trial Judgement, para 391; Kvocka Trial Judgement, para 256.
165 - Blaskic Trial Judgement, para 284.
166 - Aleksovski Trial Judgement, para 65; Blaskic Trial Judgement, para 284. 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.
167 - Furundzija Trial Judgement, para 273-274, confirmed by the Furundzija Appeal Judgement, para 126.
168 - Tadic Appeal Judgement, para 229; Aleksovski Appeal Judgement, para 162 referring to Furundzija Trial Judgement, para 249.
169 - Aleksovski Appeal Judgement, para 162 referring to the Furundzija Trial Judgement, paras 245 and 249.
170 - Furundzija Trial Judgement, para 246; followed by the Blaskic Trial Judgement, para 287. The finding in the Tadic Appeal Judgement, para 229, that it has to be shown that the aider and abettor knew that he was assisting the specific crime committed is not contradictory because it has to be read only in the context of contrasting aiding and abetting with the participation in a common purpose or design. See also Aleksovski Appeal Judgement, para 163."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 257-261:

"257. Presence alone at the scene of the crime is not conclusive of aiding or abetting , unless it is shown to have a significant legitimizing or encouraging effect on the principal.⁴⁴¹ Presence, particularly when coupled with a position of authority, is therefore a probative, but not determinative , indication that an accused encouraged or supported the perpetrators of the crime . ⁴⁴²

258. For example, in the Aleksovski case, the Trial Chamber found that, in the absence of any objection by the accused, his presence during the systematic mistreatment of detainees created a necessary inference that the accused was aware that such tacit approval would be construed as a sign of his support and encouragement . Under the circumstances, the Trial Chamber found that Aleksovski contributed substantially to the mistreatment of detainees.⁴⁴³ Furthermore, the Trial Chamber concluded that he aided and abetted the repetitious brutality suffered by two detainees even when he was absent. The Trial Chamber found that abuse of this kind was committed near the accused’s office so often that he must have been aware of it. Yet he did not oppose or stop the crimes, as his superior position demanded, and his silence could only be interpreted as a sign of approval . This silence was held to evince a culpable intent of aiding and abetting such acts as contemplated under Article 7(1) of the Statute.⁴⁴⁴

259. The Tadic Trial Chamber considered that the presence of the accused when crimes were committed by a group was sufficient to entail his responsibility if he had previously played an active role in similar acts committed by the same group and had not expressly spoken against the conduct of the group.⁴⁴⁵ This holding is particularly notable because the defendant was a low level actor , a person without any official authority who entered camps, including Omarska, to beat and otherwise abuse detainees.

260. In the Akayesu case, an ICTR Trial Chamber held that the defendant had previously provided verbal encouragement for the commission of crimes, and that his status as "bourgemeister" conferred upon him a position of authority. His subsequent silence was a signal in the face of crimes of violence committed nearby of official tolerance for the crimes.⁴⁴⁶

261. In the Furundzija case, the defendant was convicted of rape because he participated in an interrogation while the person being verbally interrogated by the defendant was raped and otherwise abused by another participant in the interrogation . The Trial Chamber found that the presence of the accused and his role in the interrogation facilitated and otherwise aided and abetted the crimes committed by the physical perpetrator.⁴⁴⁷"

"⁴⁴¹ - Kunarac Trial Chamber Judgement, para. 393; see also Tadic Trial Chamber Judgement, para. 689; Aleksovski Trial Chamber Judgement, para. 64
⁴⁴² - Aleksovski Trial Chamber Judgement, para. 65; Akayesu Trial Chamber Judgement, para. 693.
⁴⁴³ - Aleksovski Trial Chamber Judgement, para. 87.
⁴⁴⁴ - Aleksovski Trial Chamber Judgement, para.88.
⁴⁴⁵ - Tadic Trial Chamber Judgement, para. 690.
⁴⁴⁶ - Akayesu Trial Chamber Judgement, para. 693.
⁴⁴⁷ - Furundzija Trial Chamber Judgement, para. 274."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 284:

"284. The Trial Chamber holds that the actus reus of aiding and abetting⁵¹⁰may be perpetrated through an omission, provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea⁵¹¹. In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime⁵¹²."

"⁵¹⁰- The Trial Chamber notes that in the Akayesu Judgement, the Trial Chamber distinguished between, on the one hand, aiding and, on the other, abetting, as constituting two different heads of individual criminal responsibility. The Akayesu Trial Chamber held that whereas the prior means giving assistance, the latter entails the facilitation of an act by being sympathetic thereto. See Akayesu Judgement, para. 484. In this respect, the Trial Chamber further takes note of Article 25(3)(c) of the Statute of the International Criminal Court, where aiding and abetting appear to be considered two separate forms of assistance to the commission of a crime. Likewise, the 1996 ILC Report, p. 24.
⁵¹¹- Tadic Judgement, para. 686; Celebici Judgement, para. 842; Akayesu Judgement, para. 705.
⁵¹²- Judgement, The Prosecutor v. Zlatko Aleksovski, Case no. IT-95-14/1-T, 25 June 1999, (hereinafter the "Aleksovski Judgement"), para. 65; Akayesu Judgement, para. 693."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, paras. 62-65 and 87-88:

"62. The forms of participation recognised as sufficient in customary international law are not limited to physical assistance provided while the unlawful act is being committed. The Trial Chamber seized of the Tadic case noted that "the fact that participation in the commission of the crime does not require an actual physical presence or physical assistance appears to have been well accepted at the Nürnberg war crimes trial".⁸⁹ Participation may occur before, during or after the act is committed. It can, for example, consist of providing the means to commit the crime or promising to perform certain acts once the crime has been committed, that is, behaviour which may in fact clearly constitute instigation or abetment of the perpetrators of the crime. For that reason , as stated by the Trial Chamber seized of the Tadic case, "the act contributing to the commission and the act of commission itself can be geographically and temporally distanced".⁹⁰

63. Such participation need not be manifested through physical assistance. Moral support or encouragement expressed in words or even by the mere presence at the site of the crime have at times been considered sufficient to conclude that the accused participated.⁹¹

64. Mere presence constitutes sufficient participation under some circumstances so long as it was proved that the presence had a significant effect on the commission of the crime by promoting it and that the person present had the required mens rea. The Prosecutor refers to the classical example of the accomplice keeping watch while his associates commit a crime.⁹² Trial Chamber considered, in the Tadic case, that the presence of the accused when crimes were committed by a group was sufficient to entail his responsibility if he had previously played an active role in similar acts committed by the same group and had not expressly spoken out against the conduct of the group.⁹³ In the Akayesu case, the Trial Chamber of the International Criminal Tribunal for Rwanda held that the accused had abetted acts of sexual violence merely by his having been present near the premises where the crime occurred. The Trial Chamber based its conclusions on the fact that the accused had previously provided verbal encouragement for the commission of similar acts and that his position as mayor conferred on him such authority that his silence in the face of crimes being committed nearby could be interpreted by the perpetrators of the rapes only as a signal of official tolerance for sexual violence.⁹⁴ In the Furundzija case, the accused was convicted of rape because he continued his interrogation while the person being interrogated was subjected to sexual violence . The Trial Chamber found that "the presence of the accused and the continued interrogation aided and abetted the crimes committed by the Accused B".⁹⁵

65. As these cases show, an individual’s position of authority is not sufficient to lead to the conclusion that his mere presence constitutes a sign of encouragement which had a significant effect on the perpetration of the crime. It must be noted in fact that the aforementioned cases did not establish an individual’s responsibility on this basis alone. Admittedly, the presence of an individual with uncontested authority over the perpetrators of the unlawful act may, in some circumstances, be interpreted as approval of that conduct. The aforementioned cases moreover took into account the accused’s prior or concomitant behaviour or statements in order to interpret his presence as an act of abetting. Moreover, it can hardly be doubted that the presence of an individual with authority will frequently be perceived by the perpetrators of the criminal act as a sign of encouragement likely to have a significant or even decisive effect on promoting its commission. The mens rea may be deduced from the circumstances, and the position of authority constitutes one of the circumstances which can be considered when establishing that the person against whom the claim is directed knew that his presence would be interpreted by the perpetrator of the wrongful act as a sign of support or encouragement. An individual’s authority must therefore be considered to be an important indicium as establishing that his mere presence constitutes an act of intentional participation under Article 7(1) of the Statute. Nonetheless, responsibility is not automatic and merits consideration against the background of the factual circumstances. The Trial Chamber will thus assess the impact of the accused’s alleged presence at the place where the crimes were committed when it discusses the legal characterisation of the facts."

"88. Several witnesses spoke of the accused’s participation in the physical violence they suffered during their detention. The testimony of Witnesses L is consistent with that of Witness M. According to them, the abuse they received during their detention was initiated by the accused who led the guards to their cell to beat them. Some of the accused’s comments repeated at trial by the victims went to show that the accused intended to mistreat these detainees and that he had given the guards orders to that effect on several occasions. The accused had even been present on occasion and ordered the guards to go on beating them when they stopped. The Trial Chamber is satisfied beyond reasonable doubt that the accused ordered or instigated and abetted the mistreatment of these witnesses. It is also similarly satisfied that the recurring brutality the two detainees were subsequently subjected to in the absence of the accused was aided and abetted by him. Abuse of this kind was frequent and was committed day and night near the accused’s office so that the accused could hardly not have not been aware of it. Yet he did not oppose or repress it, as his position required. On the contrary, his silence could only be taken as a sign of his approval, given that he participated actively in the initial abuse of these two detainees; the accused could hardly have been unaware that his silence would amount to encouragement to the perpetrators. This silence evinces a culpable intent of aiding and abetting such acts as contemplated in Article 7(1)."

Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 232:

"232. On the issue of the nature of assistance rendered, the German cases suggest that the assistance given by an accomplice need not be tangible and can consist of moral support in certain circumstances. While any spectator can be said to be encouraging a spectacle - an audience being a necessary element of a spectacle - the spectator in these cases was only found to be complicit if his status was such that his presence had a significant legitimising or encouraging effect on the principals. This is supported by the provisions of the International Law Commission Draft Code. In view of this, the Trial Chamber believes the use of the term "direct" in qualifying the proximity of the assistance and the principal act to be misleading as it may imply that assistance needs to be tangible, or to have a causal effect on the crime. This may explain why the word "direct" was not used in the Rome Statute's provision on aiding and abetting."

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 para. 689:

"689. The Trial Chamber finds that aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present. Under this theory, presence alone is not sufficient if it is an ignorant or unwilling presence. However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it."

B. Evidentiary comment:

The fact that the suspect was present at the scene of the crime is not enough to prove he or she was aiding, abiding or assisting. However, the Tribunals have found that, when coupled with a position of authority, this may be an indication that an accused encouraged or supported the perpetrators of the crime through his or her tacit approval.

M.3.3. The perpetrator otherwise assisted in the commission of the crime, including providing the means for its commission.

A. Evidentiary comment:

Besides the two alternatives of aiding and abetting, the Rome Statute introduces "otherwise assisting" as a third form of complicity. According to Eser, "[a]iding, perhaps not surprisingly, is practically identical with assisting, while abetting comes close to, if not being almost completely identifiable with, instigation. Instead of exchanging synonyms, which are in any case rather unclear, it appears preferable to resort to the umbrella term of ‘assistance’ which can consist of any sort of contribution facilitating the commission of the crime." (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p.799).

M.P.22. Evidence that the suspect provided the means needed for the commission of the crime.

"2758. The Appeals Chamber notes that paragraph 6.32 of the Indictment specifies that, on 23 and 24 April 1994, Ndayambaje transported attackers to Kabuye Hill, and that paragraph 6.31 of the Indictment identifies the attackers by reference to their category of “communal policemen, gendarmes, soldiers and civilians armed with traditional tools and weapons”. In the view of the Appeals Chamber, the acts which formed the basis for the charge pertaining to the transportation of attackers were clearly set forth in the Indictment and the identification of the attackers by reference to their category was sufficient to provide appropriate notice. The Appeals Chamber is also not convinced by Ndayambaje’s undeveloped assertion that the Trial Chamber erred in finding that the mode of transportation used was not material to the Prosecution case. Similarly, the Appeals Chamber finds unsubstantiated and unmeritorious Ndayambaje’s argument that the behaviour of the attackers during the transportation was a material fact.⁶³²³ Rather, the material fact was that the attackers whom Ndayambaje transported attacked Tutsis after they arrived at Kabuye Hill.

6323. See Ndayambaje Appeal Brief, para. 110; Trial Judgement, para. 1255.

2759. Accordingly, the Appeals Chamber finds that Ndayambaje has not demonstrated that the Trial Chamber erred in finding that the material facts concerning the transportation of the attackers to Kabuye Hill were sufficiently pleaded in the Indictment."

"3033. As noted above, the Trial Chamber found that Ndayambaje: (i) transported soldiers, civilians, and communal policemen to Kabuye Hill, where they attacked Tutsis on 23 and 24 April 1994; (ii) distributed weapons at Kabuye Hill and the Muganza commune office on 23 April 1994, which were later used in the massacres of Tutsis at Kabuye Hill; (iii) was present on 23 and 24 April 1994 during the attacks against Tutsis at Kabuye Hill that resulted in thousands of deaths.⁶⁹³⁶

6936. Trial Judgement, paras. 1431, 1444, 1452, 1455, 1456, 5772.

3034. In concluding that Ndayambaje transported attackers to Kabuye Hill on 23 and 24 April 1994, the Trial Chamber relied on the testimonies of Witnesses EV, RT, TW, QAQ, and FAG.⁶⁹³⁷ Concerning the distributions of weapons on 23 April 1994, the Trial Chamber relied on Witness RT’s account as supported by Witnesses EV’s and QAL’s testimonies concerning the distribution at Kabuye Hill, and on the accounts of Witnesses RV and FAU concerning the distribution that took place at the Muganza commune office.⁶⁹³⁸ The Trial Chamber relied on Witnesses EV, RT, TW, QAQ, and to some extent on Defence Witnesses ALIZA and KEPIR, in finding that attacks were perpetrated on 23 and 24 April 1994 at Kabuye Hill and that Ndayambaje was present during the attacks.⁶⁹³⁹

6937. Trial Judgement, paras. 1426, 1428-1431.

6938. Trial Judgement, paras. 1432, 1434-1443.

6939. Trial Judgement, paras. 1448-1452.

3035. Ndayambaje challenges the Trial Chamber’s assessment of Prosecution and Defence evidence regarding these events.⁶⁹⁴⁰

6940. Ndayambaje Notice of Appeal, paras. 85-95, 153-160, 164-170; Ndayambaje Appeal Brief, paras. 243-246, 248-260, 480-531. See also Ndayambaje Reply Brief, paras. 178-198.

3036. In the section of the Trial Judgement where it discussed the evidence related to the transportation of attackers to Kabuye Hill on 23 and 24 April 1994, the Trial Chamber noted that Witness QAQ testified that “ o n the day following his arrival at Kabuye Hill, which would have fallen on 24 or 25 April 1994, he saw Ndayambaje driving a white vehicle transporting over five gendarmes to Kabuye Hill.”⁶⁹⁴¹ The Trial Chamber relied on Witness QAQ’s evidence, along with that of Witnesses EV, RT, TW, and FAG, to conclude that Ndayambaje transported soldiers, civilians, and policemen to Kabuye Hill on 23 and 24 April 1994 where they participated in attacks against Tutsis and that he was present at Kabuye Hill during the attacks perpetrated against the Tutsi refugees on 23 and 24 April 1994.⁶⁹⁴²

6941. Trial Judgement, para. 1426. See also ibid., para. 1448; infra, fn. 6953.

6942. Trial Judgement, paras. 1431, 1452.

3037. Ndayambaje submits that the Trial Chamber erred in its assessment of Witness QAQ’s testimony.⁶⁹⁴³ Specifically, he argues that, contrary to the Trial Chamber’s finding, it was impossible for Witness QAQ to be in Kabuye Hill on 23 or 24 April 1994 given the timeline the witness gave during his testimony.⁶⁹⁴⁴ In his view, Witness QAQ’s testimony reflects that he could not have been in Kabuye Hill before 26 April 1994, namely after the attacks on the refugees.⁶⁹⁴⁵ He also contends that Witness QAQ acknowledged that he neither saw nor identified Ndayambaje at Kabuye Hill.⁶⁹⁴⁶

6943. Ndayambaje Appeal Brief, para. 486.

6944. Ndayambaje Appeal Brief, paras. 481-483. Ndayambaje adds that Witness QAQ confirmed the timeline he gave during his testimony to Defence WitnessÉvariste-Emmanuel Siborurema. See ibid., para. 482, referring to Évariste-Emmanuel Siborurema, T. 25 August 2008 pp. 52-60 (closed session). The Appeals Chamber observes that Évariste-Emmanuel Siborurema is at times referred to under the pseudonym “Witness NAVIC” in the Trial Judgement, a protective measure the witness asked to lift when testifying in court. See Évariste-Emmanuel Siborurema, T. 25 August 2008 p. 3.

6945. See Ndayambaje Appeal Brief, para. 483.

6946. Ndayambaje Appeal Brief, para. 481.

3038. In addition, Ndayambaje avers that the testimonies of Witness TW and Defence Witness KWEPO show that Witness QAQ never went to Kabuye Hill since he was hidden elsewhere “during the events”.⁶⁹⁴⁷ Ndayambaje also contends that, having found that Witness QAQ’s evidence related to Ndayambaje’s Swearing-In Ceremony was not credible, the Trial Chamber should have also found him not credible in relation to the events at Kabuye Hill.⁶⁹⁴⁸

6947. Ndayambaje Appeal Brief, para. 484. See also Ndayambaje Reply Brief, para. 187.

6948. Ndayambaje Appeal Brief, para. 485, referring to Trial Judgement, para. 4607. See also ibid., para. 579; Ndayambaje Reply Brief, para. 183.

3039. The Prosecution responds that it can be inferred from Witness QAQ’s evidence that he was on Kabuye Hill either on 23 or 24 April 1994 and that the witness had no reason to lie about Ndayambaje’s involvement.⁶⁹⁴⁹ The Prosecution adds that Witnesses TW’s and KWEPO’s evidence does not necessarily contradict Witness QAQ’s testimony in this respect.⁶⁹⁵⁰

6949. Prosecution Response Brief, paras. 2347, 2348. The Prosecution submits that Witness QAQ had lost all notion of time and was not certain about times or the sequence of events. See ibid., paras. 2349, 2350.

6950. Prosecution Response Brief, paras. 2352-2355. The Prosecution contends that Witness Siborurema contradicted Witness KWEPO and probably tailored his testimony in light of Witness QAQ’s evidence. See ibid., paras. 2356-2358.

3040. As reflected in the Trial Judgement, Witness QAQ did not give a clear timeline between the moment he left his house and his arrival at Kabuye Hill.⁶⁹⁵¹ The witness specified that he was only providing estimates concerning the dates.⁶⁹⁵² The Appeals Chamber nonetheless understands that, in light of his testimony as to the sequence of events and the description given by other Prosecution witnesses, the Trial Chamber concluded that the transportation of attackers that Witness QAQ recounted occurred on 24 April 1994.⁶⁹⁵³ Having carefully reviewed Witness QAQ’s testimony, the Appeals Chamber considers that a reasonable trier of fact could have concluded from his testimony, considered in light of the rest of the evidence, that he arrived at Kabuye Hill on 23 April 1994 ⁶⁹⁵⁴ and that his testimony as to the presence of Ndayambaje, the day after his arrival, pertained to 24 April 1994.⁶⁹⁵⁵

6951. Trial Judgement, para. 1426 (“On the day following his arrival at Kabuye Hill, which would have fallen on 24 or 25 April 1994, Witness QAQ ... .”). See also ibid., paras. 1289, 1290.

6952. The Appeals Chamber notes that Witness QAQ repeatedly indicated before the Trial Chamber that he was only providing estimates concerning the dates, and was not sure “how many days” he spent hiding on the hill before going to Kabuye Hill. See Witness QAQ, T. 12 November 2002 pp. 50, 56 (closed session). See also T. 11 November 2002 p. 25 (closed session), T. 12 November 2002 pp. 14 and 61, 62, 66 (closed session).

6953. The Appeals Chamber notes that the Trial Chamber stated that Witness QAQ saw Ndayambaje driving a vehicle transporting gendarmes “on 24 or 25 April 1994” and, after discussing the evidence of Witnesses EV, RT, TW, and FAG, concluded that the evidence of these five witnesses demonstrated that Ndayambaje was involved in the transportation of attackers on 23 and 24 April 1994. See Trial Judgement, paras. 1426, 1431. As Witness QAQ was not found to have testified about 23 April 1994, the Appeals Chamber understands that the Trial Chamber concluded that he was testifying about 24 April 1994, and not 25 April 1994 as his testimony could also suggest. The Appeals Chamber notes that the Trial Chamber’s later reference to the witness testifying about seeing Ndayambaje “on 23 or 24 April 1994” seems to be a typographical mistake in light of the Trial Chamber’s summary of the witness’s evidence and its discussion of the most relevant part of his evidence. See ibid., paras. 1289, 1290, 1426, 1448.

6954. The Appeals Chamber observes that it is not clear from the witness’s evidence whether he left his house on Tuesday, 19 April 1994 or on Wednesday, 20 April 1994. See Witness QAQ, T. 11 November 2002 p. 23 (closed session), T. 12 November 2002 p. 55 (closed session). Witness QAQ stated that then, he “hid for three or four day s , and ... had to move to at least four places of residence” before going to Kabuye Hill, possibly placing his arrival at Kabuye Hill on 23 or 24 April 1994. See Witness QAQ, T.11November2002 pp. 24, 25 (closed session), T. 12 November 2002 p. 50 (closed session). The Appeals Chamber notes that Witness QAQ also testified that indeed he spent a single night at three different people’s houses and maybe two nights at the house of an old lady. SeeWitnessQAQ, T.12November 2002 p. 51 (closed session). However, the Appeals Chamber observes that Witness QAQ was hesitating and did not give a categorical statement regarding the number of nights he spent at the house of the old lady. See idem, p. 51 (closed session) (“I think I went there on two occasions.”) (emphasis added), 58 (“I don’t remember very well, but I think I spent two nights there ... . Probably we could ask ... , but I don’t know if she herself can remember the number of nights I spent at her place.”). See also Witness QAQ, T. 11 November 2002 pp. 24, 25 (closed session). The Appeals Chamber observes that Witness QAQ’s testimony about how many nights he spent where was unclear and approximate. See Witness QAQ, T. 12 November 2002 pp. 51, 55-58 (closed session). See also ibid., pp. 95, 104 (closed session) (French).

6955. Witness QAQ, T. 11 November 2002 pp. 26, 30, 31 (closed session).

3041. As to whether Witness QAQ saw Ndayambaje at Kabuye Hill, the Appeals Chamber notes that the Trial Chamber stated in its deliberations that the witness “saw Ndayambaje” driving a vehicle transporting gendarmes to Kabuye Hill.⁶⁹⁵⁶ When summarising his evidence, however, the Trial Chamber correctly noted that Witness QAQ explained during cross-examination that “from where he was he could not personally say whether the person in the car was Ndayambaje” and that he was told by other refugees that the vehicle he saw was Ndayambaje’s vehicle and was the same vehicle that had prevented them from continuing on their way to Burundi.⁶⁹⁵⁷ The Trial Chamber therefore erred in stating that Witness QAQ saw Ndayambaje at Kabuye Hill. It is unclear to what extent the Trial Chamber relied on this erroneous statement when reaching its finding on Ndayambaje’s involvement in the transportation of attackers to Kabuye Hill on 23 April 1994 as the Trial Chamber generally concluded that “the testimony of Witnesses EV, RT, TW, QAQ and FAG was credible on the issue of Ndayambaje’s involvement in the transportation of attackers and therefore found that on 23 and 24 April 1994, Ndayambaje transported soldiers, civilians and policemen to Kabuye Hill.”⁶⁹⁵⁸ In any event, Ndayambaje fails to demonstrate that no reasonable trier of fact could have relied on Witness QAQ’s testimony, as correctly summarised, that he saw a white vehicle transporting attackers, which the other refugees recognised as Ndayambaje’s vehicle, as corroborative of Witness TW’s testimony that Ndayambaje transported attackers to Kabuye Hill in the white commune vehicle on 24 April 1994.⁶⁹⁵⁹

6956. Trial Judgement, para. 1426.

6957. Trial Judgement, para. 1290; Witness QAQ, T. 11 November 2002 pp. 26, 28, 31 (closed session), T. 12 November 2002 pp. 83-85 (closed session).

6958. Trial Judgement, para. 1431.

6959. See infra, para. 3063.

3042. With regard to Ndayambaje’s reliance on Witness KWEPO’s evidence as contradicting Witness QAQ’s testimony that he was present at Kabuye Hill, the Appeals Chamber observes that Witness KWEPO merely gave hearsay evidence that Witness QAQ had been hidden by someone during the events and that he did not see him between May and July 1994.⁶⁹⁶⁰ Given the limited probative value of this testimony, the Appeals Chamber considers that a reasonable trier of fact could have decided that it did not cast doubt on Witness QAQ’s account that he was present during the relevant period at Kabuye Hill. As for Witness TW, the Appeals Chamber notes that his testimony does not show that Witness QAQ did not go to Kabuye Hill, but rather that he did not see Witness QAQ at Kabuye Hill and that he could not say whether Witness QAQ was there because there were many people.⁶⁹⁶¹ Ndayambaje’s argument that Witness TW’s testimony contradicts Witness QAQ’s account is therefore without merit.

3043. Finally, recalling that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony, the Appeals Chamber rejects Ndayambaje’s unsubstantiated claim that the Trial Chamber erred in accepting Witness QAQ’s testimony regarding Kabuye Hill, while rejecting his evidence related to Ndayambaje’s Swearing-In Ceremony since this rejection was based on elements that were specific to this very aspect of his testimony.⁶⁹⁶²

6960. Witness KWEPO, T. 27 August 2008 pp. 8, 9 (closed session) (“Q. Did you see Witness QAQ in the months of May, June and July in your region, that is, May, June, July ’94? A. I didn’t see him during those months, but I learnt of where he was.”).

6961. See Witness TW, T. 12 February 2004 p. 15 (closed session) (French).

6962. See Trial Judgement, paras. 4606-4608.

3044. In light of the foregoing, the Appeals Chamber finds that, although the Trial Chamber erred in stating that Witness QAQ saw Ndayambaje at Kabuye Hill, Ndayambaje has not demonstrated that a reasonable trier of fact could not have relied on Witness QAQ’s evidence that he saw a white vehicle transporting attackers, which the other refugees recognised as Ndayambaje’s vehicle, as corroborative of Witness TW’s testimony on the attacks on 24 April 1994 at Kabuye” Hill."

Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-A, Judgement (AC), 26 September 2013, para. 514, 516, 517, 520:

"514. In addition to considering the effect of Taylor’s acts and conduct in quantitative terms, the Trial Chamber also considered the effect of his acts and conduct in qualitative terms, in light of the specific factual circumstances and the consequences established by the evidence.1537 It found that Sam Bockarie and Issa Sesay would regularly turn to Taylor when the RUF/AFRC had exhausted its supply of arms and ammunition.1538 The Trial Chamber highlighted in this regard the Magburaka Shipment as one example, which came at a time when the Junta government had depleted its existing sources of supply and was faced with an international arms embargo, and after Bockarie and Koroma had requested material support from Taylor.1539 Similarly, it found that shipments provided by Taylor were indispensable for the RUF/AFRC military offensives and attacks against the civilian population in the implementation of its Operational Strategy.1540 It pointed to the Burkina Faso Shipment as a clear example, since it was unprecedented in volume and was critical in the RUF/AFRC’s attack on Freetown.1541 Taylor thus often satisfied a need or request for materiel at a particular time, and the RUF/AFRC heavily and frequently relied on materiel provided by Taylor to implement its Operational Strategy, carry out its widespread and systematic attacks against the civilian population and maintain territories.1542 Conversely, the Trial Chamber found that the sources of supply besides Taylor were insignificant and could not sustain the RUF/AFRC’s operations. 1543

516.The Appeals Chamber opines that these findings demonstrate that the Trial Chamber fully evaluated the whole of the evidence in determining whether Taylor’s acts and conduct had a substantial effect on the commission of the crimes. In concluding that materiel provided by Taylor formed part of an amalgamate of fungible resources in the specific context of the RUF/AFRC’s attempts to recapture Freetown and commission of crimes in late January/February 1999,1545 the Trial Chamber was addressing the Defence submission at trial that the capture of the ECOMOG materiel intervened in the causal link between the Burkina Faso Shipment provided by Taylor and the commission of the crimes after the retreat from Freetown.1546 The Trial Chamber found that the Burkina Faso Shipment, supplied by Taylor, was - causally critical? to the capture of the ECOMOG materiel.1547 It found that there was thus a causal link between Taylor’s acts and conduct and the crimes, whether the specific materiel used in each specific crime was from the Burkina Faso Shipment or the captured ECOMOG materiel.1548 Similarly, in finding that materiel provided by Taylor formed part of the overall supply of materiel in 1999-2001 used by the RUF/AFRC in the commission of crimes,1549 the Trial Chamber properly recognised that the RUF/AFRC had additional sources of materiel, some attributable to Taylor and others not, at that time. The Appeals Chamber agrees with the Trial Chamber that as a matter of law, an accused need not be the only source of assistance in order for his acts and conduct to have a substantial effect on the commission of the crimes,1550 and notes that the Trial Chamber took into consideration other sources of assistance in assessing whether Taylor’s acts and conduct had a substantial effect on the commission of the crimes.1551

517. Whether an accused’s acts and conduct have a substantial effect on the crimes is to be assessed on a case-by-case basis in light of the evidence as a whole.1552 The Appeals Chamber affirms the Trial Chamber’s qualitative and quantitative assessment in light of the whole of its findings, the specific factual circumstances and the consequences established by the evidence. In the Appeals Chamber’s view, the Trial Chamber’s findings demonstrate that Taylor provided materiel to the RUF/AFRC regularly throughout the Indictment Period, in comparison with the irregular and sporadic supplies from other sources, and that his provision of arms and ammunition to the RUF/AFRC was dynamic, responsive and timely, often satisfying a need or request for materiel at a particular time. Those findings further demonstrate that Taylor provided substantial quantities of materiel to the RUF/AFRC over the course of the Indictment Period, compared to minor and insufficient quantities from other sources. They illustrate that the RUF/AFRC, faced with an arms embargo, had a finite supply of materiel to support its operations, and that of that supply, the arms and ammunition provided by Taylor were critical in enabling the RUF/AFRC’s Operational Strategy, in the implementation of which the crimes charged were committed.

520. The Appeals Chamber notes that the Trial Chamber’s findings demonstrate that the operational support Taylor provided was extensive, sustained and impacted key RUF/AFRC operations critical to its functioning and its capacity to implement its Operational Strategy. The communications and logistics support Taylor provided was sustained and significant.1557 It enhanced the capability of the RUF/AFRC leadership to plan, facilitate or order RUF/AFRC military operations during which crimes were committed,1558 enabled the RUF/AFRC to coordinate regarding arms shipments and diamond transactions critical to its logistics1559 and assisted the RUF/AFRC to evade attacks by ECOMOG forces.1560 Similarly, the RUF Guesthouse enhanced the RUF/AFRC’s capacity to obtain arms and ammunition from Taylor in exchange for diamonds,1561 which was critical in enabling the RUF/AFRC’s Operational Strategy.1562 The RUF/AFRC’s diamond mining activities involved the systematic commission of crimes.1563 The logistical support Taylor provided - the provision of security escorts, the facilitation of access through checkpoints, and the much needed assistance with transport of arms and ammunition by road and by air - supported and sustained the provision of arms and ammunition by Taylor to the RUF/AFRC, and - played a vital role in the operations of the RUF/AFRC during a period when an international arms embargo was in force.1564 With respect to the military personnel provided by Taylor, the 170 soldiers participated in RUF/AFRC military offensives during which crimes charged were committed,1565 boosted the morale of other RUF/AFRC troops1566 and provided the RUF/AFRC with high-level military expertise."1567

1537 Trial Judgment, paras 5828-5834, 5835(xxxix)(xl), 5842, 6913, 6914. See generally Trial Judgment, paras 5528-5753 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused), 5754-5834 (Arms and Ammunition: Other Sources of Materiel), 5835-5842 (Arms and Ammunition: Summary of Findings and Conclusion). In addition, see the Trial Chamber’s discussion and assessment of the specific factual circumstances for each occasion on which Taylor provided materiel to the RUF/AFRC. The Defence proposed at trial and the Trial Chamber agreed that the effect of arms and ammunition provided by Taylor could be determined by assessing the relative importance of Taylor as a source of materiel to the RUF/AFRC. Trial Judgment, paras 5530, 5754, 5755, 6913.

1538 Trial Judgment, paras 5828-5834, 5842, 6914. See, e.g. , Trial Judgment, paras 4803-4854 (Ammunition Supply from Daniel Tamba), 4855-4965 (Deliveries of Materiel from Taylor to Sierra Leone), 4966-5031 (Trips by Bockarie to Liberia in 1998), 5111-5130 (Shipment brought back by Dauda Aruna Fornie), 5131-5163 (Deliveries from Taylor), 5196-5224 (Trips by Issa Sesay in Second Half of 2000 to 2001), paras 5225-5252 (Trips by Issa Sesay’s Subordinates).

1539 Trial Judgment, paras 5829, 6914. See Trial Judgment, paras 5349-5409 (Magburaka Shipment), 5531-5560 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused: The AFRC Coup in May 1997 to the Retreat from Freetown in February 1998). The Burkina Faso Shipment was also facilitated by Taylor following Bockarie’s request. Trial Judgment, para. 5514.

1540 Trial Judgment, para. 5828-5834, 5835(xxxix)(xl), 5842, 6914. The RUF/AFRC was short of ammunition after the ECOMOG Intervention through 1998 until the Burkina Faso Shipment, and the RUF/AFRC did not capture or obtain from other sources much materiel during this period. Trial Judgment, paras 5819, 5823, 5826. Throughout this period the RUF/AFRC directed widespread and systematic attacks against the civilian population in the implementation of its Operational Strategy. See further Trial Judgment, paras 5531-5560 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused: The AFRC Coup in May 1997 to the Retreat from Freetown in February 1998), 5561-5593 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused: Operations in Kono in early 1998), 5594-5632 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused: Fitti-Fatta in mid-1998), 5633-5667 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused: Operations in the North).

1541 Trial Judgment, paras 5514, 5841. See Trial Judgment, paras 5410-5527 (Arms and Ammunition: Allegations that the Accused Facilitated Supplies: Burkina Faso Shipment), 5668-5721 (Arms and Ammunition: Use of Materiel Supplied or Facilitated by the Accused: The December 1998 Offensives and the Freetown Invasion).1542 Trial Judgment, paras 5828-5834, 5835(xl), 5842, 6914.1543 Trial Judgment, paras 5812, 5823,5826-5828, 5833, 5835(xxxix), 5842. See also Trial Judgment, para. 5833 ("The Trial Chamber finds beyond reasonable doubt that these alternative sources of materiel were of minor importance in comparison to that supplied or facilitated by [Taylor].").See generally Trial Judgment, paras 5754-5831 (Arms and Ammunition: Other Sources of Materiel). The Defence conceded that the three main sources of arms and ammunition for the RUF/AFRC during the Indictment Period were (i) the Magburaka Shipment, (ii) the Burkina Faso Shipment and (iii) the materiel captured from ECOMOG in December 1998. Trial Judgment, para. 5809. The Trial Chamber assessed the importance of other sources of materiel: (i) the stockpiles of arms and ammunition held by the Junta government; (ii) captured materiel from ECOMOG and other pro-government sources; (iii) trade with ULIMO and sources in Guinea; (iv) captured materiel from UN peacekeepers in May 2000.

1545 See generally Trial Judgment, paras 3472-3477 (Joint RUF/AFRC attempts to re-enter Freetown).

1546 Trial Judgment, para. 5712. See also supra para. 333, fn. 1010. The Trial Chamber found that materiel supplied or facilitated by Taylor often contributed to and was causally linked to the capture of supplies by the RUF/AFRC. With respect to the use of arms and ammunition on the outskirts of Freetown and in the Western Area after the retreat from Freetown, materiel from among three possible sources - the Burkina Faso Shipment, the provision of ammunition to Dauda Aruna Fornie during the Freetown Invasion and materiel captured from ECOMOG - was distributed to the RUF/AFRC forces and used during attacks in the course of the RUF/AFRC’s attempts to recapture Freetown. While the Burkina Faso Shipment and the materiel brought by Fornie were supplied by Taylor, the Defence argued at trial that the materiel captured from ECOMOG was not. The Defence accordingly argued that it was not possible to establish that materiel provided by Taylor was used by the RUF/AFRC troops in the commission of crimes, and that any effect of the materiel from the Burkina Faso Shipment on the associated atrocities in or around Freetown after the retreat from Freetown was too remote in time and place in light of the use of captured materiel. However, Issa Sesay admitted in his testimony that without the Burkina Faso Shipment, the RUF/AFRC would not have launched its initial operations on Kono, and that without taking Kono, the RUF/AFRC would not have had the materiel necessary to attack other areas. The Trial Chamber therefore considered that the Burkina Faso Shipment was causally critical to the success of the Kono operation and to the capture of materiel in the operations in Kono, and that as a result - "the materiel captured in the operations in Kono [was] directly referable to the materiel from the Burkina Faso shipment". Trial Judgment, paras 5702-5716, 5721, 5824-5827, 5830, 5842. While the Defence argues that the capture of this materiel was not foreseeable in light of a variety of factors, this submission is undeveloped as a matter of law, and unsupported and contrary to the evidence as a matter of fact, since the Bockarie/Taylor Plan envisaged an attack on Kono followed by a movement to Freetown, which is in fact what occurred. See Trial Judgment, paras 3129, 6959. ContraTaylor Appeal, para. 470.

1547 Trial Judgment, paras 5715, 5721.

1548 Trial Judgment, para. 5715.

1549 Materiel provided by Taylor - formed part of the overall supply of materiel? used by the RUF/AFRC in its activities, including the commission of crimes, during 1999, 2000 and 2001. During these periods, the RUF/AFRC continued to commit crimes, even though it was not necessarily engaged in military operations. The evidence was not sufficiently precise to establish conclusively that the materiel supplied by Taylor was used to commit these crimes or used in specific locations. There were alternative sources of supply available during these periods, and there was evidence that some of the materiel provided by Taylor was never used. Nonetheless, given the nature of the crimes committed and activities conducted and that they necessarily involved the use of arms and ammunition, the Trial Chamber was satisfied that the supplies provided by Taylor were part of the overall supply of materiel used by the RUF/AFRC in its activities, including the commission of crimes. Trial Judgment, paras 5743-5745, 5750-5753.

1550 Trial Judgment, para. 6913. As the accused’s culpable assistance need not be the - "but for" cause of the crime, in recognition of the fact that international crimes are often "over-determined", it follows that multiple actors may be reasonably found to have a substantial effect on the commission of the crime. See Blaškić Appeal Judgment, para. 48; Simić Appeal Judgment, para. 85. See, e.g., Simić Appeal and Simić et al. Trial Judgments (multiple accused were found to have had a substantial effect the commission of the same crimes). The post-Second World War tribunals also found multiple accused guilty for assisting the same crimes. See, e.g.,Ministries Case, Pohl Case, Einsatzgruppen Case, Justice Case, Becker, Weber and 18 Others Case, Rohde Case.

1551 Trial Judgment, paras 5828-5834, 5842, 6913, 6914. See generally Trial Judgment, paras 5754-5831(Arms and Ammunition: Other Sources of Materiel).

1552 Sesay et al. Appeal Judgment, para. 769; Fofana and Kondewa Appeal Judgment, para. 75. Accord Ntawukulilyayo Appeal Judgment, para. 214; Lukić and Lukić Appeal Judgment, para. 468; Blagojević and Jokić Appeal Judgment, para. 134.

1557 Trial Judgment, para. 4262.

1558 Trial Judgment, paras 4252, 4262, 6928, 6936. See generally Trial Judgment, paras 3667-3731 (Operational Support: Communications Support: Satellite Phones).

1559 Trial Judgment, paras 4254, 4262, 6929, 6936. See generally Trial Judgment, paras 3622-3914 (Operational Support: Communications).

1560 Trial Judgment, paras 4255, 4262, 6930, 6936. See generally Trial Judgment, paras 3887-3914 (Operational Support: Communications: Use of Liberian Communication by the RUF:"448" Warnings).

1561 Trial Judgment, paras 4261, 4262, 6933, 6936. See generally Trial Judgment, paras 4194-4247 (Operational Support: Provision of RUF Guesthouse in Monrovia).

1562 Trial Judgment, para. 5834, 5835(xl), 5842, 6913-6915.

1563 See supra paras 261-263.

1564 Trial Judgment, para. 4256, 4262, 6934, 6936. See generally, Trial Judgment, paras 3915-3918 (Operational Support: Logistical Support).

1565 Trial Judgment, paras 4619, 4620, 6919. See generally Trial Judgment, paras 4266-4396 (Provision of Military Personnel: Red Lion Battalion), 4397-4495 (Military Personnel: Scorpion Unit).

1566 Trial Judgment, para. 6923.

1567 Trial Judgment, paras 4491, 6922.

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, paras. 5775-5777:

"5775. It is the Chamber’s finding that Ndayambaje’s acts of distributing weapons at both the Muganza commune office and Kabuye Hill on 23 April 1994, weapons which were used in the subsequent attacks at Kabuye Hill, as well as transporting soldiers, civilians and commune policemen to Kabuye Hill, substantially contributed to the commission of the crimes at Kabuye Hill on 23 and 24 April 1994. Ndayambaje was also present during the attacks at Kabuye Hill on 23 and 24 April 1994, which in the Chamber’s view encouraged the same attacks. The Chamber is satisfied that Ndayambaje knew that his positive acts substantially contributed to the commission of the attacks at Kabuye Hill on 23 and 24 April 1994 and knew that his presence would be considered by the assailants as tacit approval of the attack.

5776. The Chamber has also considered whether Ndayambaje crossed the line separating aiding and abetting from committing genocide, and thus whether he became a principal perpetrator of the crime itself. While Ndayambaje played a role in events surrounding the killings, and substantially contributed to them, the Chamber does not find that his conduct was as much an integral part of the genocide as the killings themselves. The Chamber therefore considers that aiding and abetting is the mode of responsibility that best captures Ndayambaje’s role in the attacks.

5777. The Chamber finds it established, beyond a reasonable doubt, that Ndayambaje is guilty of aiding and abetting genocide for his role in the attacks at Kabuye Hill on 22 through 24 April 1994."

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 6:

M.P.22.1. Evidence of loading weapons

M.P.22.2. Evidence of facilitating transport for the perpetrators to the crime scene

6323. See Ndayambaje Appeal Brief, para. 110; Trial Judgement, para. 1255.

6936. Trial Judgement, paras. 1431, 1444, 1452, 1455, 1456, 5772.

6937. Trial Judgement, paras. 1426, 1428-1431.

6938. Trial Judgement, paras. 1432, 1434-1443.

6939. Trial Judgement, paras. 1448-1452.

3035. Ndayambaje challenges the Trial Chamber’s assessment of Prosecution and Defence evidence regarding these events.⁶⁹⁴⁰

6940. Ndayambaje Notice of Appeal, paras. 85-95, 153-160, 164-170; Ndayambaje Appeal Brief, paras. 243-246, 248-260, 480-531. See also Ndayambaje Reply Brief, paras. 178-198.

6941. Trial Judgement, para. 1426. See also ibid., para. 1448; infra, fn. 6953.

6942. Trial Judgement, paras. 1431, 1452.

6943. Ndayambaje Appeal Brief, para. 486.

6945. See Ndayambaje Appeal Brief, para. 483.

6946. Ndayambaje Appeal Brief, para. 481.

6947. Ndayambaje Appeal Brief, para. 484. See also Ndayambaje Reply Brief, para. 187.

6948. Ndayambaje Appeal Brief, para. 485, referring to Trial Judgement, para. 4607. See also ibid., para. 579; Ndayambaje Reply Brief, para. 183.

6951. Trial Judgement, para. 1426 (“On the day following his arrival at Kabuye Hill, which would have fallen on 24 or 25 April 1994, Witness QAQ ... .”). See also ibid., paras. 1289, 1290.

6955. Witness QAQ, T. 11 November 2002 pp. 26, 30, 31 (closed session).

6956. Trial Judgement, para. 1426.

6957. Trial Judgement, para. 1290; Witness QAQ, T. 11 November 2002 pp. 26, 28, 31 (closed session), T. 12 November 2002 pp. 83-85 (closed session).

6958. Trial Judgement, para. 1431.

6959. See infra, para. 3063.

6961. See Witness TW, T. 12 February 2004 p. 15 (closed session) (French).

6962. See Trial Judgement, paras. 4606-4608.

Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-TC, Judgement (TC), 22 June 2009, para. 393:

"393. Later that day, on 23 April 1994, Kalimanzira came to Kabuye hill with soldiers and policemen. The Tutsi refugees had successfully repelled attacks with sticks and stones until that day, but they could not resist bullets. With significantly more civilian attackers on the ground, the Saturday attack proved successful and the Tutsi refugees were killed in the thousands, resulting in an enormous human tragedy. Kalimanzira’s role in luring Tutsis to Kabuye hill and his subsequent assistance in providing armed reinforcements substantially contributed to the overall attack. Kalimanzira exhibited here, and elsewhere, an intent to destroy the Tutsi group (see III.5.2). For these reasons, the Chamber finds Kalimanzira guilty beyond reasonable doubt of aiding and abetting genocide on 23 April 1994 at Kabuye hill."

M.P.22.3. Evidence of letting a house.

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.22.4. Evidence of providing gas for the gas chambers.

M.P.22.5. Evidence of constructing gas ovens.

M.P.22.6. Evidence of arranging transport

A. Legal source/authority and evidence:

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 660:

"660. By his involvement in the redirection of the buses carrying the prisoners to Ovcara, the assistance rendered this way had a substantial effect on the commission of the crimes in Ovcara."

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.23. Evidence of the suspect receiving and passing detailed messages.

A. Legal source/authority and evidence:

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 684:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1499-1501:

"1499. The Trial Chamber recalls its majority finding above that Borovcanin knew, as of 12 July when he was in Potocari, that a forcible transfer of the civilian population was taking place. In ordering his commanders and units to participate in the operation to move the population, Borovcanin knew that this would assist substantially with the crime of forcible transfer. This knowledge would have only been reinforced on the evening of the 12 July when Jevic reported to him on the actions of the unit during that day.

1500. As found above, the Trial Chamber is not satisfied that Borovcanin had any intent to forcibly transfer. Further, the evidence is insufficient to demonstrate that he intended to assist in a forcible transfer. As it is, however, under the jurisprudence of this Tribunal, not only is the accused not required to share the intent of the crime, he or she need not even have the intent to assist with the crime for responsibility through aiding and abetting to attach. It is sufficient for the accused to know that an act will assist the commission of the crime by the principal. The Trial Chamber notes that in the vast majority of cases, the acts of the accused, with the requisite knowledge that it assists a crime, will allow for no other reasonable inference than that the accused intended to assist the commission of an offence. That is, however, not the case in this instance where the participation of Borovcanin’s men substantially assisted a crime, but at the same time aided in providing relief to a population facing a humanitarian disaster. The law of the Tribunal however does not allow for a distinction to be drawn on this basis in terms of criminal responsibility.

1501. In light of his knowledge of the forcible transfer, the Trial Chamber, by majority, Judge Kwon dissenting, finds that Borovcanin’s action in allowing the use of his personnel his subordinate commanders and the Jahorina Recruits to assist in the transfer of the Bosnian Muslim women, children, and the elderly out of Potocari, amounts to aiding and abetting the crime of forcible transfer. The circumstances described above which surround Borovcanin’s intent will be considered by the Trial Chamber in mitigation of sentence."

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