Table of contents:
Element:
M.1. Commits the crime as an individual
M. 1.1. The direct perpetration of the crime by the perpetrator
M.1.1.1. Evidence of the direct perpetration of the crime by the perpetrator
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. 1119-1131, 1383-1393, 3323:
"1119. As noted above and discussed in further detail below in Section V.G.1 related to the Hotel Ihuliro roadblock, the Trial Chamber found that Ntahobali physically perpetrated the killing of multiple Tutsis at the Hotel Ihuliro roadblock in April 1994, including the killing of a “Tutsi girl” who arrived at the roadblock around the end of April 1994.2593 In making factual findings regarding the killing of the “Tutsi girl”, the Trial Chamber relied on Prosecution evidence that the victim was dragged by Ntahobali from her vehicle into the woods near the roadblock and the EER where she was raped and killed.2594 The Trial Chamber convicted Ntahobali under Counts 2, 6, 8, and 10 pursuant to Article 6(1) of the Statute on this basis.
2593. See supra, para. 1115.
2594. Trial Judgement, para. 3133.
1120. The Trial Chamber determined that paragraph 6.27 of the Indictment provided the location of the roadblock, gave an adequate description of the timeframe involved, and alleged that Ntahobali made use of the roadblock with the assistance of others to identify, abduct, and kill Tutsis and that it was therefore not defective concerning the allegation that Ntahobali made use of a roadblock near his home to identify, abduct, and kill Tutsis.2595 It considered that it was not necessary for the Indictment to provide the exact identity of the alleged co-perpetrators.2596
2595. Trial Judgement, para. 2928.
2596. Trial Judgement, para. 2928.
1121. Ntahobali submits that the Trial Chamber erred in finding that the allegation that he committed killings at the Hotel Ihuliro roadblock, including the murder of a Tutsi girl, was pleaded in paragraph 6.27 of the Indictment.2597 With respect to the murder of the Tutsi girl specifically, Ntahobali contends that: (i) the dates in paragraph 6.27 were too vague to put him on adequate notice that this crime occurred “around the end of April 1994”, in particular in light of the fact that the Prosecution failed to indicate the date of establishment of the roadblock;2598 (ii) the site of the murder, namely the EER woods, was not specified in this paragraph;2599 and (iii) the Trial Chamber erred in finding that paragraph 6.27 was not defective in failing to mention the co-perpetrators whom the Prosecution had identified, such as “Jean-Pierre”, in contradiction with the order it had given to the Prosecution in 2000 to identify them in the Indictment.2600
2597. Ntahobali Notice of Appeal, para. 91; Ntahobali Appeal Brief, para. 203.
2598. Ntahobali Appeal Brief, para. 205.
2599. Ntahobali Appeal Brief, para. 206.
2600. Ntahobali Notice of Appeal, paras. 90, 99; Ntahobali Appeal Brief, para. 207, referring to The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Arsène Shalom Ntahobali’s Preliminary Motion Objecting to Defects in the Form and Substance of the Indictment, 1 November 2000 (“1 November 2000 Ntahobali Decision”), paras. 30, 35(a)(ii). See also Ntahobali Reply Brief, para. 86.
1122. As regards the other killings he was found to have committed at the Hotel Ihuliro roadblock, Ntahobali reiterates that paragraph 6.27 of the Indictment was impermissibly vague concerning the dates of the killings and the identity of his accomplices as well as concerning the identity of the victims and the means by which the crimes were committed.2601 Ntahobali contends that none of these defects was subsequently cured.2602
2601. Ntahobali Appeal Brief, para. 209. In particular, Ntahobali contends that names such as “Kazungu”, “Jean-Pierre”, “Leonard”, “Padiri”, “Emmanuel”, or “Lambert” should have been specified in the Nyiramasuhuko and Ntahobali Indictment as the Prosecution questioned its witnesses in that regard. See idem. In his reply brief, Ntahobali argues that, because he was convicted for committing crimes, the material facts had to be pleaded with even more specificity. See Ntahobali Reply Brief, para. 87.
2602. Ntahobali Notice of Appeal, para. 92; Ntahobali Appeal Brief, paras. 208, 210.
1123. The Prosecution responds that the summaries of the anticipated evidence of Witnesses TB and SX appended to the Prosecution Pre-Trial Brief and their relevant prior statements cured the vagueness in paragraph 6.27 of the Indictment regarding the allegation that he killed a Tutsi girl after raping her at the Hotel Ihuliro roadblock as they provided the approximate date and location of the murder.2603 The Prosecution also argues that since the Trial Chamber did not find that Jean-Pierre was involved in this murder, no notice was required in that regard.2604 It further contends that Ntahobali was put on notice that he was charged with other abductions and killings at this roadblock through the disclosure of the summaries of the anticipated evidence of Witnesses SX, SR, and TF.2605
2603. Prosecution Response Brief, para. 787, referring to Trial Judgement, paras. 2941, 2942, referring in turn to Witness Summaries Grid, item 88, Witness SX (“Witness SX’s Summary”), item 90, Witness TB (“Witness TB’s Summary”), statement of Witness SX of 2 December 1997, signed on 4 December 1997, disclosed on 25 May 1998, 4 November 1998, 10 December 1999, and admitted into evidence as Exhibit D145 (confidential) on 9 February 2004 (“Witness SX’s Statement”), statement of Witness TB of 5 December 1997, disclosed on 4 November 1998 and admitted into evidence as Exhibit D151 (confidential) on 12 February 2004 (“Witness TB’s Statement”). See 25 May 1998 Disclosure; 4 November 1998 Disclosure; 10 December 1999 Disclosure.
2604. Prosecution Response Brief, paras. 787, 788.
2605. Prosecution Response Brief, para. 788.
1124. Ntahobali replies that the post-indictment information provided by the Prosecution was too contradictory to be considered clear and coherent.2606
2606. Ntahobali Reply Brief, para. 85. Ntahobali also replies that the Prosecution’s failure to specify that he was alleged to have committed crimes against a Tutsi girl with the complicity of “Jean-Pierre” although it had the information indicated that he was not charged with any crimes committed with Jean-Pierre. See ibid., para. 86.
1125. The Appeals Chamber recalls that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.”2607
2607. Munyakazi Appeal Judgement, para. 36; Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. See also Ndindabahizi Appeal Judgement, para. 16.
1126. The Appeals Chamber observes that paragraph 6.27 of the Indictment refers to “[b]etween April and July 1994” as the period of time during which Ntahobali was alleged to have used the Hotel Ihuliro roadblock to kill members of the Tutsi population. The Appeals Chamber recalls that a broad date range, in and of itself, does not invalidate a paragraph of an indictment.2608 In the case at hand, the Indictment reflects that the Prosecution intended to prove that abductions and killings were recurring at the roadblock and spanned over several months. The Appeals Chamber considers that the sheer scale of these alleged crimes made it impracticable to require a high degree of specificity in the dates for the commission of each crime.2609 In these circumstances, the Appeals Chamber finds that the Trial Chamber did not err in considering that the allegation concerning the killing of the “Tutsi girl” in late April 1994 was encompassed in paragraph 6.27.
2608. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 594; Bagosora and Nsengiyumva Appeal Judgement, para. 150; Muvunyi Appeal Judgement of 29 August 2008, para. 58.
2609. See Bagosora and Nsengiyumva Appeal Judgement, para. 150 (“Obviously, there may be instances where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.”); Muvunyi Appeal Judgement of 29 August 2008, para. 58; Kupreškić et al. Appeal Judgement, para. 89.
1127. Nevertheless, the Prosecution does not dispute that it was in possession of information regarding the date of establishment of the roadblock in the second half of April 1994,2610 which would have allowed it to particularise the broad date range in paragraph 6.27 of the Indictment. As the Prosecution was in a position at the time to provide higher specificity regarding Ntahobali’s alleged responsibility for committing abductions and killings at the Hotel Ihuliro roadblock, the Appeals Chamber finds that the Trial Chamber erred in considering that the date range “[b]etween April and July 1994” in paragraph 6.27 of the Indictment gave “an adequate description of the time frame involved”.2611
2610. See supra, para. 1123. The Appeals Chamber also refers to its analysis of Ntahobali’s argument on the information provided in the Nyiramasuhuko and Ntahobali Indictment on the date of the establishment of the roadblock in para. 1140 below, and to its discussion of the evidence in this respect in Section V.G.2 below.
2611. Trial Judgement, para. 2928.
1128. The Appeals Chamber, however, is not persuaded by Ntahobali’s argument that the exact location where the “Tutsi girl” was dragged from the Hotel Ihuliro roadblock to be killed was a material fact that needed to be pleaded in the Indictment. Similarly, as far as Ntahobali was alleged to have personally committed the crimes, the Appeals Chamber finds no merit in Ntahobali’s argument that the Trial Chamber erred in finding that the exact identity of his co-perpetrators did not have to be provided in the Indictment.2612
2612. The Appeals Chamber understands that the Trial Chamber’s order to the Prosecution to provide the “identity of at least some of the ‘unknown persons’ in paragraph 6.27 [of the Nyiramasuhuko and Ntahobali Indictment]” with whom he was alleged to have worked, if known, was related to the charges brought under Article 6(3) of the Statute and the modes of accessory liability under Article 6(1) of the Statute. See 1 November 2000 Ntahobali Decision, para. 35(a)(ii). See also ibid., para. 30.
1129. As for Ntahobali’s argument regarding the identity of the victims killed at the Hotel Ihuliro roadblock and the means by which the crimes were committed, the Appeals Chamber finds that, in light of the nature of the allegation, which concerns recurring crimes and a large number of victims, often unidentified, it was impracticable or impossible for the Prosecution to identify the victims by name2613 and to specify Ntahobali’s conduct in further detail in the Indictment.
2613. See supra, fn. 2609.
1130. Turning to whether the defect in the Indictment regarding the date range was cured, the Appeals Chamber observes that the Prosecution informed Ntahobali through Witnesses QCB’s and SX’s summaries and statements that the Hotel Ihuliro roadblock was being alleged to have been established approximately around 21 April 1994 and that killings took place there from the very same day.2614 Ntahobali does not substantiate his argument that the information provided in the Prosecution’s post-indictment submissions was contradictory on this point. The Appeals Chamber therefore finds that the Prosecution’s failure to particularise the broad date range pleaded in paragraph 6.27 of the Indictment by not specifying the date of establishment of the Hotel Ihuliro roadblock was adequately remedied.
2614. See Witness QCB’s Summary (“On 21 April 1994 [...] QCB went to Butare with a Tutsi acquaintance. [...] Then they came to a third roadblock supervised by Ntahobali. [...] QCB’s acquaintance[] refused to join the Tutsi group and Ntahobali ordered his killing and he was immediately killed.”); Witness SX’s Summary (“SX saw a roadblock erected about 100 meters from the EER [...]. [...] people were allowed to pass or were killed. [...] SX estimates that approximately 500 Tutsi were killed at that roadblock.”); Witness SX’s Statement, pp. K146646, K146647 (Registry pagination) (“The barrier was erected [...] approximately two weeks after I heard of the death of the President on Radio Rwanda. [...] On the morning that they erected the barrier, people would be coming [...]. [...] the individual would be killed or let to pass. [...] On this first day I estimated approximately 500 people killed at the barrier.”). Witnesses QCB’s and SX’s summaries were marked relevant to Ntahobali and were linked to Counts 2, 3, 5, 6 and 8 through 11 of his indictment. The Appeals Chamber considers that Ntahobali should have been prompted to re-examine Witness SX’s Statement upon reading Witness SX’s Summary.
1131. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber’s error in not considering that the Indictment was overly broad regarding the timeframe of the alleged abductions and killings committed at the Hotel Ihuliro roadblock did not invalidate its decision to convict Ntahobali on this basis as the defect was subsequently cured. The Appeals Chamber finds that Ntahobali has failed to demonstrate that the Trial Chamber erred in any other respect regarding notice of the allegation that he committed killings at the roadblock."
"1383. In the “Factual Findings” section of the Trial Judgement concerning Ntahobali’s role at the Hotel Ihuliro roadblock, the Trial Chamber recalled the evidence of Prosecution Witnesses FA, QCB, SX, TB, TG, and TQ.3163 The Trial Chamber considered the ability of Witnesses QCB, SX, TB, TG, and TQ to identify Ntahobali as well as the corroborative nature of their testimonies.3164 The Trial Chamber found “their accounts credible”3165 and subsequently concluded as follows:
Having considered all the evidence before it, the Chamber finds the Prosecution has established beyond a reasonable doubt that during the relevant time period, Ntahobali manned the roadblock in front of his parents’ residence and utilised the roadblock with the assistance of soldiers and other unknown persons to abduct and kill members of the Tutsi population.3166
3163. See Trial Judgement, paras. 3118-3120, 3124.
3164. Trial Judgement, para. 3118-3120, 3122-3124.
3165. Trial Judgement, para. 3124.
3166. Trial Judgement, para. 3128.
1384. The Trial Chamber provided its most detailed assessment of Ntahobali’s criminal responsibility for killings at the Hotel Ihuliro roadblock in the “Genocide” section of the “Legal Findings” section of the Trial Judgement.3167 In this particular section, the Trial Chamber concluded as follows:
In April 1994 Ntahobali manned the roadblock near Hotel Ihuliro. With the assistance of soldiers and other unknown persons he utilised the roadblock to abduct and kill members of the Tutsi population. Towards the end of April 1994, Ntahobali personally raped and murdered one Tutsi girl, and instructed the Interahamwe to kill Léopold Ruvurajabo, who was subsequently killed, at the roadblock near Hotel Ihuliro. It was established that various crimes, in particular beatings, rapes and killings, were carried out mostly against Tutsis at this roadblock during the relevant time period [...].3168
[...]
Ntahobali killed Tutsis at the Hotel Ihuliro roadblock [...]. The Chamber therefore finds Ntahobali guilty of genocide, pursuant to Article 6 (1) of the Statute. [...]3169
3167. Compare Trial Judgement, paras. 5842-5849, 5971 with ibid., paras. 6053-6055, 6100, 6101, 6121, 6168, 6169.
3168. Trial Judgement, para. 5842 (emphasis added).
3169. Trial Judgement, para. 5971 (emphasis added).
1385. The Trial Chamber repeated the conclusion that Ntahobali killed “Tutsis” at the Hotel Ihuliro roadblock, “including a Tutsi girl”, when finding him responsible for committing extermination and persecution as crimes against humanity as well as violence to life, health, and physical or mental well-being of persons as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II.3170
3170. Trial Judgement, paras. 6053-6055, 6100, 6101, 6121, 6168, 6169.
1386. Ntahobali submits that the Trial Judgement is unacceptably imprecise regarding his convictions for the killings he allegedly committed at the Hotel Ihuliro roadblock, which violates his right to a reasoned opinion provided for under Article 22(2) of the Statute and Rule 88(C) of the Rules.3171 Specifically, he contends that, save for the killing of the “Tutsi girl”, the Trial Chamber failed to indicate what other killings of Tutsis he was found to have personally committed.3172 He argues that the Trial Chamber could not have found him liable based on the extended form of committing as it did not make the conclusions that would have been essential to support this mode of responsibility.3173 Ntahobali submits that the imprecision of the Trial Judgement concerning his responsibility for the killing of multiple Tutsis at the Hotel Ihuliro roadblock prevented him from knowing exactly what he was found responsible for and from mounting an effective appeal.3174
3171. Ntahobali Notice of Appeal, paras. 303, 307-309; Ntahobali Appeal Brief, paras. 861, 862, 864. See also AT. 16 April 2015 pp. 31, 32.
3172. Ntahobali Notice of Appeal, para. 303; Ntahobali Appeal Brief, paras. 428, 864-868. Ntahobali observes that the Trial Chamber’s conclusion in paragraph 3128 of the Trial Judgement is a verbatim restatement of paragraph 6.27 of the Indictment. See Ntahobali Appeal Brief, para. 865.
3173. Ntahobali Appeal Brief, para. 870, referring to the actus reus of extended commission as conduct that “was as much an integral part of the genocide as were the killings which it enabled”. Alternatively, Ntahobali contends that if the Trial Chamber did rely on the extended form of committing, the Trial Judgement is unacceptably imprecise. See idem.
3174. Ntahobali Notice of Appeal, paras. 307, 308; Ntahobali Appeal Brief, paras. 864, 869.
1387. In addition, Ntahobali argues that the finding that he committed killings at the Hotel Ihuliro roadblock beyond the killing of the Tutsi girl is not supported by the evidence.3175 He points out that, except for Witness FA, none of the witnesses found credible by the Trial Chamber testified to having seen him directly perpetrating such killings at this roadblock.3176 For these reasons, Ntahobali requests that the Appeals Chamber acquit him of all crimes committed at the Hotel Ihuliro roadblock other than the killing of Ruvurajabo and the “Tutsi girl”.3177
3175. Ntahobali Notice of Appeal, para. 303; Ntahobali Appeal Brief, paras. 431, 432, 865.
3176. Ntahobali Appeal Brief, paras. 431-437. See also ibid., paras. 865-687. Ntahobali also argues that it is unclear whether the Trial Chamber disregarded some or all of Witness FA’s evidence concerning Ntahobali’s participation in crimes at this roadblock. See ibid., para. 866, referring to Trial Judgement, para. 3123.
3177. Ntahobali Notice of Appeal, para. 309.
1388. The Prosecution responds that Ntahobali’s criminal responsibility for committing killings at the Hotel Ihuliro roadblock is based solely on him having raped and murdered a Tutsi girl.3178 It contends that the Trial Chamber did not convict Ntahobali under Article 6(1) of the Statute for committing other crimes at the roadblock but “merely found that [other crimes] occurred”.3179
3178. Prosecution Response Brief, paras. 1161, 1162. See also ibid., para. 1159.
3179. Prosecution Response Brief, para. 1161.
1389. Ntahobali replies that the Trial Judgement clearly reflects that he was convicted for having committed killings other than that of the Tutsi girl at the Hotel Ihuliro roadblock and reiterates that he should be acquitted of these crimes.3180
3180. Ntahobali Reply Brief, paras. 349-351. See also AT. 16 April 2015 p. 32.
1390. The Appeals Chamber observes that, contrary to the Prosecution’s position, the Trial Judgement indicates that Ntahobali’s responsibility for committing under Article 6(1) of the Statute is based on him having killed “Tutsis” at the Hotel Ihuliro roadblock, “including a Tutsi girl”.3181 By using the plural “Tutsis”, the Trial Chamber’s legal findings clearly reflect responsibility for multiple deaths. Furthermore, by utilising the term “killed” or phrase “having killed” when identifying Ntahobali’s conduct in the “Legal Findings” section of the Trial Judgement, the Trial Chamber made it clear that Ntahobali’s responsibility was based on his physical perpetration of killings3182 and not on the extended form of commission.3183 The Appeals Chamber therefore finds that Ntahobali was convicted for having physically perpetrated the killing of multiple Tutsis at the Hotel Ihuliro roadblock, including but not limited to the killing of the “Tutsi girl”.
3181. See Trial Judgement, paras. 5971, 6053-6055, 6100, 6101, 6121, 6168, 6169.
3182. See Nahimana et al. Appeal Judgement, para. 478 (“The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent)”.).
3183. On the extended form of committing pursuant to Article 6(1) of the Statute, see Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60.
1391. The Appeals Chamber observes that the Trial Chamber’s relevant factual findings in the “Factual Findings” section of the Trial Judgement do not support the Trial Chamber’s legal conclusion that Ntahobali physically perpetrated the killing of multiple Tutsis at the roadblock. The relevant findings only states that Ntahobali “manned the roadblock in front of his parents’ residence and utilised the roadblock with the assistance of soldiers and other unknown persons to abduct and kill members of the Tutsi population”,3184 without specifying that he physically killed multiple Tutsis at the Hotel Ihuliro roadblock, as stated throughout the “Legal Findings” section.3185 While the Trial Chamber discussed at length Ntahobali’s role at the roadblock, at no point did it find that Ntahobali physically killed anybody at that location other than the “Tutsi girl”.
3184. Trial Judgement, para. 3128.
3185. See Trial Judgement, paras. 5971, 6053, 6100, 6168.
1392. Furthermore, the only evidence referred to by the Trial Chamber that Ntahobali personally killed persons at the roadblock in addition to the “Tutsi girl” was Witness FA’s “eyewitness testimony that Ntahobali used an axe to kill a girl with long hair” and Witnesses QCB’s and SX’s testimonies that Ntahobali “participated in the killing of people at this roadblock.”3186 However, Witness FA’s account of the incidents at the Hotel Ihuliro roadblock was not found credible by the Trial Chamber.3187 As for Witness QCB’s evidence, the excerpts of the testimony cited by the Trial Chamber relate to Ntahobali ordering the killing of Ruvurajabo3188 rather than committing that crime.3189 The relevant excerpts of Witness SX’s testimony referred to by the Trial Chamber generally reflect the witness stating that “Shalom was one of the killers” of the Hotel Ihuliro roadblock without referring to any particular killing and with no further detail.3190 The evidence relied upon by the Trial Chamber therefore does not support the conclusion that Ntahobali physically killed more than one individual at the Hotel Ihuliro roadblock.
3186. Trial Judgement, para. 3118, referring to Witness FA, T. 30 June 2004 p. 54 (closed session), T. 1 July 2004 p. 27, Witness QCB, T. 20 March 2002 pp. 62-65, Witness SX, T. 27 January 2004 pp. 17, 18.
3187. The Trial Chamber did not refer to any of Witness FA’s evidence when identifying what evidence it determined to be credible in this section of the Trial Judgement. See Trial Judgement, paras. 3122, 3124. The Appeals Chamber also notes that the Trial Chamber found major reliability and credibility issues with regard to Witness FA’s testimony in relation to events connected to Hotel Ihuliro. See ibid., paras. 3103-3106.
3188. See Witness QCB, T. 20 March 2002 pp. 62, 65.
3189. The Prosecution acknowledges that Ntahobali was convicted based on his involvement in the killing of Ruvurajabo at the Hotel Ihuliro roadblock but that Ntahobali’s responsibility was for ordering this crime. See Prosecution Response Brief, para. 1161.
3190. See Witness SX, T. 27 January 2004 p. 17.
1393. In light of the above, the Appeals Chamber considers that the Trial Chamber failed to provide a reasoned opinion for its finding that Ntahobali was criminally responsible under Article 6(1) of the Statute for committing multiple killings of Tutsis at the Hotel Ihuliro roadblock. The Appeals Chamber further finds that no reasonable trier of fact could have found that Ntahobali physically perpetrated killings of Tutsis at the Hotel Ihuliro roadblock in addition to that of the Tutsi girl based on the Trial Chamber’s factual findings or the evidence deemed credible by the Trial Chamber."
"3323. Even if the Appeals Chamber were to overturn the Trial Chamber’s findings that Kanyabashi’s Speech was not inflammatory and did not substantially contribute to the subsequent killings, it is not convinced that Kanyabashi’s approval of Kambanda’s and Sindikubwabo’s Speeches, his position of authority, and the contents of his speech are sufficient to qualify Kanyabashi’s overall conduct as that of “committing” genocide. The Appeals Chamber considers that, where it is not established that the accused was present at the scene of the crimes, conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators, making a speech days, if not weeks, before the physical perpetration of killings cannot be deemed to constitute “direct participation in the actus reus” of the killings. Nor can such circumstances compel the conclusion that the conduct of the individual who gave the speech was as much an integral part of the genocide as were the killings which it allegedly enabled. In the view of the Appeals Chamber, the notion of commission by playing an integral part in the crime is not as expansive as the Prosecution argues in the present case. Consequently, the Appeals Chamber finds it unnecessary to discuss the Prosecution’s submissions concerning Kanyabashi’s genocidal intent."
Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, para. 5852:
"5852. The Chamber has found beyond a reasonable doubt that, given the narrow time frames involved between Ntahobali’s threat pronounced against the Rwamukwaya family, the sighting of their bodies, and the first sightings of Ntahobali in Rwamukwaya’s vehicle, Ntahobali is responsible for killing Rwamukwaya and his family, on or about 29 or 30 April 1994. The Chamber also found that the Rwamukwaya family was of Tutsi ethnicity ()."
Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T , Judgement (TC), 1 December 2010, paras. 562-563. But see Appeals Chamber’s findings, Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-A, Judgement (AC), 20 October 2010, para. 37.
"562. The Chamber recalls that "committing" is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime.833 Therefore the question of whether an accused with his own hands committed a crime (for example killing people) is not the only relevant criterion.834 In Prosecutor v. Gacumbitsi, Mr. Gacumbitsi was held to have committed genocide when he separated Tutsi from Hutu as part of a criminal act in which the concerned Tutsi were killed. In construing the criminal responsibility of Gacumbitsi in that case, the Appeals Chamber held that his actions were "as much an integral part of the genocide as were the killings which [they] enabled."835
563. On the basis of the totality of the evidence presented, the Chamber finds that the Gacumbitsi threshold has been met in the present case. Rukundo participated from the outset until the completion of the crime: from the time when the soldiers, acknowledging his authority, showed him documents taken from St. Joseph’s College, before abducting Madame Rudahunga, and following the blue pick-up which carried Madame Rudahunga away from the College, until he boasted about killing Madame Rudahunga and her two children, therefore claiming ownership of the acts.836 Rukundo’s acts were as much an integral part of the criminal act as were the killing and the causing of serious bodily harm which they enabled. His acts amount to "committing" under Article 6(1) of the Statute."
833 Seromba, Judgement (AC), para. 161; Gacumbitsi, Judgement (AC), para. 60; Ndindabahizi, Judgement (AC), para. 123.
834 Seromba, Judgement (AC), para. 161.
835 Gacumbitsi, Judgement (AC), para. 60; Seromba, Judgement (AC), para. 161.
836 See Section III.4.d.
Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-A, Judgement (AC), 20 October 2010, para. 37:
"37. In sum, the Appeals Chamber finds that the Indictment does not plead "commission" as a form of individual criminal responsibility for the crimes of genocide and murder and extermination as crimes against humanity for the killing of Madame Rudahunga and the beating of her two children and two other Tutsi civilians and for the abduction and subsequent killing of Tutsi refugees from the Saint Léon Minor Seminary. By convicting Rukundo of "committing" these crimes, the Trial Chamber erred in law by expanding the charges against Rukundo to encompass an unpleaded form of responsibility. Even if the failure to plead "committing" with respect to these events could be cured, as the Prosecution suggests, a review of the Prosecution’s opening statement reveals that "committing" was not part of its case at the commencement of the case."
Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-T, Judgement (TC), 5 July 2010, para. 429, 491:
"429. With respect to "committing", the Appeals Chamber in Seromba held that [i]n the context of genocide, however, "direct and physical perpetration" need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime".864
"491. The Trial Chamber recalls that Munyakazi was a prominent man in Bugarama community on the basis of his wealth and prior positions at Banque Populaire and the CAVECUVI cooperative. He was therefore in a position of authority at the crime sites. The Trial Chamber recalls that although it found that the Prosecution had not established beyond reasonable doubt that Munyakazi personally killed Tutsi civilians at the crime sites, it also found that the Prosecution has established that Munyakazi was the leader of the attack at Shangi Parish on 29 April 1994, and a leader of the attack on Mibilizi Parish on 30 April 1994 (see Chapter II.8 and Chapter II.9), and that the purpose of the attacks was to eliminate the Tutsi civilians who had sought refuge at those locations. On the basis of his leadership position at the crime sites, the Trial Chamber concludes that Munyakazi was as much an integral part of the the killings as those he enabled, and that he approved and embraced the decision to commit the crimes as his own. The Trial Chamber therefore finds he is liable for "committing" the killings at Shangi and Mibilizi Parishes on 29 and 30 April 1994 respectively."
864 Seromba Appeal Judgement, para. 161, citing Gacumbitsi Appeal Judgement, para. 60.
Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, paras. 155-161:
"155. With respect to committing as mode of participation in crimes, the Trial Chamber in this case stated that
"committing" means the direct physical or personal participation of the accused in the perpetrationof a crime or the culpable omission of an act that was mandated by a rule of criminal law.366
The Trial Chamber found that the Prosecution has not proved beyond reasonable doubt that Athanase Seromba committed the massacres of Tutsi refugees.367
156. The Prosecution submits that the Trial Chamber’s approach to the concept of direct participation in the material elements of the crime of genocide does not take into consideration that Athanase Seromba acted through others, which amounts to direct participation in the crime, namely "committing" as a mode of liability set out in Article 6(1) of the Statute.368 In the Prosecution’s opinion, the Trial Chamber’s findings in this regard are inconsistent with the Appeals Chamber’s recent jurisprudence holding that the concept of commission of the crime of genocide cannot be restricted to the physical killing of individuals, but that it also includes other acts such as being present, supervising and directing a massacre, and separating Tutsis so they can be killed.369
157. The Prosecution presents a number of factual conclusions reached in the Trial Judgement which, in its view, should have led the Trial Chamber to conclude that Athanase Seromba participated directly in the material elements of the crime of genocide,370 and possessed the specific intent to destroy the Tutsi group as such.371 Specifically, the Prosecution highlights the Trial Chamber’s findings with regard to, inter alia, Athanase Seromba’s presence during the massacres;372 his instruction to the gendarmes to prevent the Tutsi refugees from taking bananas from the parish plantation;373 his instructions to stop the killings and remove the bodies before massacres resumed;374 his agreement with the authorities’ decision to bulldoze the church and his direction and supervision of the bulldozing;375 his position of authority in the parish;376 and his decision to expel Tutsi employees and refugees from the parish and the subsequent death of two of them.377
158. The Prosecution submits that the context of the events in which Athanase Seromba participated was such that, taken together with his "acts and utterances", it should have led the Trial Chamber to conclude that he had the requisite specific intent for the crime of genocide.378 In this regard the Prosecution stresses several factual findings in the Trial Judgement including Athanase Seromba’s refusal to celebrate mass for the Tutsi refugees,379 his expelling of Tutsi refugees from the church, and the death of Meriam.380
159. Athanase Seromba responds that the Prosecution misinterpreted the findings of the Trial Chamber with regard to his participation in the commission of the crime of genocide.381 He argues that his acts were motivated by a good intention and that they did not amount to the commission of genocide.382Athanase Seromba further argues that the Prosecution is attempting to extend the concept of commission of a crime through an inaccurate use of the Tadi} and Gacumbitsi Appeal Judgements.383 More specifically in relation to the latter, Athanase Seromba submits that it cannot be used as a precedent since he did not commit any crime.384
160. Furthermore, Athanase Seromba contests the Prosecution’s interpretation of a number of facts upon which its appeal is based385 and concludes that there is no support for the Prosecution’s contention that he possessed genocidal intent and committed acts of genocide.386
161. The Appeals Chamber recalls that
[i]n the context of genocide, however, "direct and physical perpetration" need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.387
The jurisprudence makes clear that "committing" is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime.388 The question of whether an accused acts with his own hands, e.g. when killing people, is not the only relevant criterion.389 The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in law by holding that "committing" requires direct and physical perpetration of the crime by the offender. To remedy this error, the Appeals Chamber will apply the correct legal standard—i.e., whether Athanase Seromba’s actions were "as much an integral part of the genocide as were the killings which [they] enabled."390 In so doing, it will determine whether, as the Prosecution has argued on appeal, the Trial Chamber’s factual conclusions and the evidence contained in the trial record support the conclusion that Athanase Seromba became a principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide.391"
366 Trial Judgement, para. 302.
367 Trial Judgement, para. 312.
368 Prosecution’s Appellant’s Brief, para. 30.
369 Prosecution’s Appellant’s Brief, paras. 31-40, quoting Gacumbitsi Appeal Judgement, paras. 59-61. AT. 26
November 2007 p. 7.
370 Prosecution’s Appellant’s Brief, para. 42; AT. 26 November 2007 p. 7.
371 Prosecution’s Appellant’s Brief, para. 45; AT. 26 November 2007 pp. 5-6.
372 Prosecution’s Appellant’s Brief, para. 42 a.
373 Prosecution’s Appellant’s Brief, para. 42 b.
374 Prosecution’s Appellant’s Brief, para. 42 b.
375 Prosecution’s Appellant’s Brief, paras. 42 e, 42 f.
376 Prosecution’s Appellant’s Brief, para. 42 c.
377 Prosecution’s Appellant’s Brief, para. 42 d.
378 Prosecution’s Appellant’s Brief, paras. 27-29.
379 Prosecution’s Appellant’s Brief, para. 45 b.
380 Prosecution’s Appellant’s Brief, para. 45 c.
381 Seromba’s Respondent’s Brief, para. 49.
382 Seromba’s Respondent’s Brief, paras. 47-49.
383 Seromba’s Respondent’s Brief, paras. 54-58; AT. 26 November 2007 p. 18.
384 Seromba’s Respondent’s Brief, para. 60.
385 Seromba’s Respondent’s Brief, para. 64.
386 Seromba’s Respondent’s Brief, para. 67.
387 Gacumbitsi Appeal Judgement, para. 60.
388 See Gacumbitsi Appeal Judgement, para. 60; Ndindabahizi Appeal Judgement, para. 123.
389 "Committing" is not limited to physical perpetration of a crime. See, e.g., ARCHBOLD: CRIMINAL PLEADING, EVIDENCE AND PRACTICE (2007), §18-7; Bundesgerichtshof [BGH] [(German) Federal Supreme Court of Justice] 26 July 1994, Entscheidungen des Bundesgerichtshofs in Strafsachen [BGHSt] 40, 218 (236).
390 Gacumbitsi Appeal Judgement, para. 60.
391 Cf. Blagojević and Jokić Appeal Judgement, para. 8; Blagoje Simić Appeal Judgement, para. 9; Naletilić and Martinović Appeal Judgement, para. 10. The Appeals Chamber also recalls Rule 118(A) of the Rules which provides that "the Appeals Chamber shall pronounce judgement on the basis of the record on appeal and on any additional evidence as has been presented to it". Rule 109(A) of the Rules provides that "[t]he record on appeal shall consist of the trial record, as certified by the Registrar".
ICTY
Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 907:
"907. The evidence establishes beyond reasonable doubt that Milan Lukic shot at the seven captured men whom he had ordered to line up along the bank of the Drina river. Both VG014 and VG032 heard the sound of Milan Lukic’s sniper rifle, which was fitted with a silencer, being fired. Furthermore, Mitar Vasiljevic testified that Milan Lukic and the other two soldiers opened fire on the seven men. The Trial Chamber notes VG032’s evidence that Meho Dzafic was killed midscream by a muffled shot. In view of the consistency in the evidence that the other two soldiers used rifles that were not fitted with silencers, the Trial Chamber considers that it has been proven beyond reasonable doubt that Milan Lukic shot and killed Meho Dzafic."
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 694:
"694. It is commonly understood that individual criminal responsibility will attach for "committing" a crime where it is established that the accused himself physically perpetrated the criminal act or personally omitted to act when required to do so under law. 2143
"2143. Tadic Appeal Judgement, para. 188."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 137:
"137. The meaning to be attached to "committed", the highest degree of participation in a crime, is not controversial. Any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with the requisite knowledge. 246 An accused person will be held criminally responsible if he actually carries out the actus reus of the enumerated crimes. 247 There can be several perpetrators in relation to the same crime where the conduct of each of them fulfils the elements of the definition of the substantive offence. 248 The requisite mens rea is that the accused intended that a criminal offence occur as a consequence of his conduct."
246 - Stakic Trial Judgement, para. 439; Naletilic Trial Judgement, para. 62; Vasiljevic Trial Judgement, para. 62; Kvocka Trial Judgement, paras 250-251; Krstic Trial Judgement, para. 601; Kunarac Trial Judgement, para. 390; Kordic Trial Judgement, para. 376.
247 - In relation to the offence of unlawful confinement, the Appeals Chambers in Celebici held that a finding of "committed" required "something more […] than mere knowing zparticipation’ in a general system or operation pursuant to which civilians are confined. […] Such liability is reserved for persons responsible in a more direct or complete sense for the civilian’s unlawful detention." (paras 342 and 343) The Appeals Chamber further held that a finding of liability pursuant to Article 7(1) for detention requires a demonstration that the accused had the authority to detain or release the persons detained, or that his acts or omissions had a substantial effect on the continued detention. A greater degree of involvement than the mere awareness that some persons were detained without reasonable grounds to suspect that they posed a security risk is required to establish primary responsibility. (Celebici Appeal Judgement, para. 364)
248 - Naletilic Trial Judgement, para. 62; Kunarac Trial Judgement, para. 390.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 243:
"243. In the jurisprudence of the Tribunals, "Instigating" has been defined to mean "prompting another to commit an offence."412 "Committing" a crime "covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law."413 "Aiding and abetting" means "rendering a substantial contribution to the commission of a crime."414
"412 - Krstic Trial Chamber Judgement, para. 601; Akayesu Trial Chamber Judgement, para. 482; Blaskic Trial Chamber Judgement, para. 280; Kordic Trial Chamber Judgement, para. 387.
413 - Krstic Trial Chamber Judgement, para. 601; Tadic Appeals Chamber Judgement, para. 188; Kunarac Trial Chamber Judgement, para. 390.
414 - Krstic Trial Chamber Judgement, para. 601; Aleksovski Appeals Chamber Judgement, paras 162-164."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 601:
"601. The Trial Chambers of the ICTY and the ICTR and the Appeals Chamber of the ICTY have identified the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute.1340 The essential findings in the jurisprudence may be briefly summarised as follows:
"1340 - Cf. Article 6(1) of the Statute of the ICTR. In its Final Trial Brief (para. 3), the Prosecution incorporates by reference its submissions on Article 7 in its Pre-Trial Brief (paras 13-86). Likewise, the Defenc’s submissions on Article 7 in its Pre-Trial Brief (paras 13-29) are incorporated in its Final Trial Brief (para. 2).
1341 - Akayesu Judgement, para. 480; Blaskic Judgement, para. 279; Kordic and Cerkez Judgement, para. 386.
1342 - Akayesu Judgement, para. 482; Blaskic Judgement, para. 280; Kordic and Cerkez Judgement, para. 387.
1343 - Akayesu Judgement, para. 483; Blaskic Judgement, para. 281; Kordic and Cerkez Judgement, para. 388.
1344 - Tadic Appeal Judgement, para. 188; Kunarac et al. Judgement, para. 390.
1345 - Aleksovski Appeal Judgement, paras. 162-164.
1346 - Tadic Appeal Judgement, paras. 185-229. The Appeals Chamber in the Tadic Appeal Judgement interchangeably used several other terms, such as "Common purpose" liability (Tadic Appeal Judgement, para. 220), to denote the same form of participation. For reasons discussed below, the Trial Chamber proposes to apply the label "Joint criminal enterprise" throughout this Judgement. Trial Chamber II recently discussed joint criminal enterprise liability in detail in Prosecutor v. Radoslav Brdanin and Momir Talic , Decision on Form of Further Amended Indictment and Prosecution Application to Amend, Case No. IT-99-36-PT, 26 June 2001 (the ?i>Talic Decision?."
"(a) Perpetration by "committing" the crime
390. An individual can be said to have "committed" a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law.1034 There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfills the requisite elements of the definition of the substantive offence."
"1034 - Prosecutor v Tadic, Case IT-94-1-A, Judgement, 15 July 1999, par 188."
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 paras. 187-188:
"187. Bearing in mind the preceding general propositions, it must be ascertained whether criminal responsibility for participating in a common criminal purpose falls within the ambit of Article 7(1) of the Statute.
188. This provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose."
Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 282-285:
"282. Paragraph 5 of the Indictment charges the Accused with physical perpetration in relation to persecutions (Count 1) by ethnic denigration (paragraphs 15 and 17 (k)) with respect to the Accused’s speeches in Vukovar and Hrtkovci, and in relation to the charges of deportation and inhumane acts (forcible transfer) (Counts 10 and 11, paragraphs 31 to 33), with respect to the Accused’s speech in Hrtkovci.325"
"325. The Chamber notes that in its Closing Brief the Prosecution explicitly abandoned charges of direct and public denigration as a persecutory act in relation to the speeches in Mali Zvornik (Prosecution Closing Brief, para. 562, note 1715)."
"283. These charges became void of a legal basis once the Chamber, by a majority, rejected the existence of crimes against humanity. Moreover, the majority recalls that the Prosecution often conflated the calls by the Accused aimed at rallying the Serbian forces and fighters in the face of the enemy (mobilisation against the Ustashas or the Balijas) and the calls that were directed against the non-Serb civilians. The mere use of an abusive or defamatory term is not sufficient to demonstrate persecution. Furthermore, the Prosecution did not offer any contextual evidence that would allow one to measure the real significance or impact of the speeches in Hrtkovci or Vukovar; bearing in mind that the Chamber, by a majority, with Judge Lattanzi dissenting, distinguishes between speeches and actions that stem from a conflict between the communities and actions that stem from deliberate and discriminatory criminal violence."
"284. The majority also notes that even if we narrow down the calls to those which, given their context, could be said to have targeted non-Serb civilians (Croatian civilians, especially in the Hrtkovci speech), the analysis of the real significance of this speech suffers from the same noticeable insufficiency. The Accused, as the majority already recalled, did not take part in any exchange of houses. Even if he encouraged them, in a context that was deemed coercive, he would not be a direct perpetrator of persecutory acts, if these exchanges can be qualified as such. In regard of calls to “cleanse” the area from Croats, it was also understood during the hearings that these calls, which went against the policies of the Serbian government at the time – deemed as fearful and as offering little protection to the interests of the Serbian refugees - were not accepted, let alone executed. Finally, the Chamber, by a majority, Judge Lattanzi dissenting, does not consider that the Prosecutor has proven the existence of persecutory acts. Even if he had, these criminal acts would not suffice to convict, since this is a Tribunal whose jurisdiction is confined to acts the magnitude of which is sufficient to be qualified as crimes against humanity."
"285. The Chamber, by a majority, Judge Lattanzi dissenting, finds that in the present case the Accused cannot be held responsible under Article 7 (1) of the Statute for having physically perpetrated the crimes of persecution, as crimes against humanity as charged in the Indictment. The Chamber, unanimously, finds that in the present case the Accused cannot be held responsible under Article 7 (1) of the Statute for having physically perpetrated the crimes of deportation and inhumane acts (forcible transfer), as crimes against humanity, as charged in the Indictment."
M. 1.2. "Other acts" and act as "integral part" of the crime.
M. 1.3. Substantial contribution to the completion of the crime.
A. Legal source/authority and evidence:
Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 908:
"908. The Trial Chamber further concludes that Milan Lukic’s role and actions in the events leading up to the killings, at Sase and, particularly, at the river’s edge before and during the killings, were such that were it not for his presence and directions, including regarding the manner in which the men were to be killed, the killings would not have been committed. The Trial Chamber therefore holds that he is also responsible for having committed the killings of Ekrem Džafić, Hasan Mutapčić, Hasan Kustura and Amir Kurtalić. The Trial Chamber follows the finding of the Appeals Chamber in Seromba and Gacumbitsi that a person who did not personally physically commit a crime – in the present case, personally shooting each victim – can nonetheless be liable for committing the crime of murder if there is evidence that the perpetrator’s acts were as much an integral part of the murder as the killings which the crime enabled. The Trial Chamber acknowledges that the crime charged in the present case is murder, and not genocide or extermination, which were the crimes under consideration in Seromba and Gacumbitsi. However, in its view, there is nothing in these judgements that would suggest that the ratio decidendi could not be applicable to the crime of murder. Indeed, the Trial Chamber observes that the Seromba judgement also applied to the crime of extermination, which is the act of killing albeit on a large scale. The Trial Chamber therefore holds in respect of Ekrem Džafić, Hasan Mutapčić, Hasan Kustura and Amir Kurtalic, who might have been shot, not by Milan Lukic but by his colleagues, that there is abundant evidence to conclude, following the Seromba case, that Milan Lukic embraced these shootings as his own."
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 694:
"694. It is commonly understood that individual criminal responsibility will attach for "committing" a crime where it is established that the accused himself physically perpetrated the criminal act or personally omitted to act when required to do so under law. 2143
"2143. Tadic Appeal Judgement, para. 188."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003 para. 137:
"137. The meaning to be attached to "committed", the highest degree of participation in a crime, is not controversial. Any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with the requisite knowledge. 246 An accused person will be held criminally responsible if he actually carries out the actus reus of the enumerated crimes. 247 There can be several perpetrators in relation to the same crime where the conduct of each of them fulfils the elements of the definition of the substantive offence. 248 The requisite mens rea is that the accused intended that a criminal offence occur as a consequence of his conduct."
246 - Stakic Trial Judgement, para. 439; Naletilic Trial Judgement, para. 62; Vasiljevic Trial Judgement, para. 62; Kvocka Trial Judgement, paras 250-251; Krstic Trial Judgement, para. 601; Kunarac Trial Judgement, para. 390; Kordic Trial Judgement, para. 376.
247 - In relation to the offence of unlawful confinement, the Appeals Chambers in Celebici held that a finding of "committed" required "something more […] than mere knowing zparticipation’ in a general system or operation pursuant to which civilians are confined. […] Such liability is reserved for persons responsible in a more direct or complete sense for the civilian’s unlawful detention." (paras 342 and 343) The Appeals Chamber further held that a finding of liability pursuant to Article 7(1) for detention requires a demonstration that the accused had the authority to detain or release the persons detained, or that his acts or omissions had a substantial effect on the continued detention. A greater degree of involvement than the mere awareness that some persons were detained without reasonable grounds to suspect that they posed a security risk is required to establish primary responsibility. (Celebici Appeal Judgement, para. 364)
248 - Naletilic Trial Judgement, para. 62; Kunarac Trial Judgement, para. 390.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 243:
"243. In the jurisprudence of the Tribunals, "Instigating" has been defined to mean "prompting another to commit an offence."412 "Committing" a crime "covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law."413 "Aiding and abetting" means "rendering a substantial contribution to the commission of a crime."414
"412 - Krstic Trial Chamber Judgement, para. 601; Akayesu Trial Chamber Judgement, para. 482; Blaskic Trial Chamber Judgement, para. 280; Kordic Trial Chamber Judgement, para. 387.
413 - Krstic Trial Chamber Judgement, para. 601; Tadic Appeals Chamber Judgement, para. 188; Kunarac Trial Chamber Judgement, para. 390.
414 - Krstic Trial Chamber Judgement, para. 601; Aleksovski Appeals Chamber Judgement, paras 162-164."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 601:
"601. The Trial Chambers of the ICTY and the ICTR and the Appeals Chamber of the ICTY have identified the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute.1340 The essential findings in the jurisprudence may be briefly summarised as follows:
"1340 - Cf. Article 6(1) of the Statute of the ICTR. In its Final Trial Brief (para. 3), the Prosecution incorporates by reference its submissions on Article 7 in its Pre-Trial Brief (paras 13-86). Likewise, the Defenc’s submissions on Article 7 in its Pre-Trial Brief (paras 13-29) are incorporated in its Final Trial Brief (para. 2).
1341 - Akayesu Judgement, para. 480; Blaskic Judgement, para. 279; Kordic and Cerkez Judgement, para. 386.
1342 - Akayesu Judgement, para. 482; Blaskic Judgement, para. 280; Kordic and Cerkez Judgement, para. 387.
1343 - Akayesu Judgement, para. 483; Blaskic Judgement, para. 281; Kordic and Cerkez Judgement, para. 388.
1344 - Tadic Appeal Judgement, para. 188; Kunarac et al. Judgement, para. 390.
1345 - Aleksovski Appeal Judgement, paras. 162-164.
1346 - Tadic Appeal Judgement, paras. 185-229. The Appeals Chamber in the Tadic Appeal Judgement interchangeably used several other terms, such as "Common purpose" liability (Tadic Appeal Judgement, para. 220), to denote the same form of participation. For reasons discussed below, the Trial Chamber proposes to apply the label "Joint criminal enterprise" throughout this Judgement. Trial Chamber II recently discussed joint criminal enterprise liability in detail in Prosecutor v. Radoslav Brdanin and Momir Talic , Decision on Form of Further Amended Indictment and Prosecution Application to Amend, Case No. IT-99-36-PT, 26 June 2001 (the ?i>Talic Decision?."
"(a) Perpetration by "committing" the crime
390. An individual can be said to have "committed" a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law.1034 There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfills the requisite elements of the definition of the substantive offence."
"1034 - Prosecutor v Tadic, Case IT-94-1-A, Judgement, 15 July 1999, par 188."
Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 41:
"41. The Chamber holds that an accused may participate in the commission of a crime either through direct commission of an unlawful act or by omission, where he has a duty to act."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 378:
"378 As is evident from the earlier discussion of the law relating to unlawful confinement , the Appeals Chamber considers that a person in the position of Mucic commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where
(i) he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the state;596 or
(ii) he knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).597"
596 - This relates to the first ‘category’ of the offence.
597 - This relates to the second ‘category’.
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 paras. 187-188:
"187. Bearing in mind the preceding general propositions, it must be ascertained whether criminal responsibility for participating in a common criminal purpose falls within the ambit of Article 7(1) of the Statute.
188. This provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose."Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 908:
"908. The Trial Chamber further concludes that Milan Lukic’s role and actions in the events leading up to the killings, at Sase and, particularly, at the river’s edge before and during the killings, were such that were it not for his presence and directions, including regarding the manner in which the men were to be killed, the killings would not have been committed. The Trial Chamber therefore holds that he is also responsible for having committed the killings of Ekrem Džafić, Hasan Mutapčić, Hasan Kustura and Amir Kurtalić. The Trial Chamber follows the finding of the Appeals Chamber in Seromba and Gacumbitsi that a person who did not personally physically commit a crime – in the present case, personally shooting each victim – can nonetheless be liable for committing the crime of murder if there is evidence that the perpetrator’s acts were as much an integral part of the murder as the killings which the crime enabled. The Trial Chamber acknowledges that the crime charged in the present case is murder, and not genocide or extermination, which were the crimes under consideration in Seromba and Gacumbitsi. However, in its view, there is nothing in these judgements that would suggest that the ratio decidendi could not be applicable to the crime of murder. Indeed, the Trial Chamber observes that the Seromba judgement also applied to the crime of extermination, which is the act of killing albeit on a large scale. The Trial Chamber therefore holds in respect of Ekrem Džafić, Hasan Mutapčić, Hasan Kustura and Amir Kurtalic, who might have been shot, not by Milan Lukic but by his colleagues, that there is abundant evidence to conclude, following the Seromba case, that Milan Lukic embraced these shootings as his own."
