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

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

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 269:

"269. Instigating means prompting another to commit an offence. Both acts and omissions may constitute instigating, which covers express as well as implied conduct. The nexus between instigation and perpetration requires proof. It is not necessary to demonstrate that the crime would not have been perpetrated without the accused’s involvement; it is sufficient to prove that the instigation was a factor clearly contributing to the conduct of other persons committing the crime in question. It has further to be demonstrated that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 168:

"168.[…] Instigating" means prompting another to commit an offence, which is actually committed.²⁸¹ It is sufficient to demonstrate that the instigation was "a clear contributing factor to the conduct of other person(s)."²⁸² It is not necessary to demonstrate that the crime would not have occurred without the accused’s involvement.²⁸³ […]"

"281 - Akayesu Trial Judgement, para. 482; Blakic Trial Judgement, para. 280; Kordic Trial Judgement, para. 387.
282 - Kvocka Trial Judgement, para. 252, citing Kordic Trial Judgement, para. 387.
283 - Kvocka Trial Judgement, para. 252, citing Kordic Trial Judgement, para. 387."

M.P.1. Evidence of the suspect’s inflammatory and discriminatory statements

 

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 7, 196, 286-287, 289-292, 297-350:

 

"7. According to the Prosecution’s second pillar, the Accused directly committed3 a certain number of crimes, notably by public and direct denigration, in speeches inciting hatred, of the non-Serb populations of Vukovar (Croatia) and Hrtkovci (Vojvodina in Serbia), particularly the Croats, and by calling for their deportation from these parts."

"196. […] The Accused’s speech of 6 May did not extend the actions against Croatian civilians in other places. It was an electoral campaign speech, certainly anti-Croat in tenor, but one that was mainly directed against the actions of the Serbian authorities, judged to be inefficient and insufficiently protective of the Serbian refugees driven out of Croatia.¹⁵⁶ The majority fails to see in what way the Prosecution established that this speech and its hypothetical consequences could have strengthened or even prolonged a Serbian attack on a larger scale directed against the Croatian civilian population. In the view of the majority, the evidence heard points to acts driven by essentially domestic motives, private in nature, whose main focus was the acquisition of housing, which the Serbs did not have due to their refugee status, and by no means allows for a finding of a massive attack against the Croatian civilian population. In this sense, the majority notes several testimonies that speak of complaints lodged by a number of Croats who had been threatened or forcibly removed from their homes, and whose rights were later restituted by the local authorities.¹⁵⁷"

"156. See VS-061, T(E) 10036.

157. See for example: VS-061, T(E) 10023-10025; Aleksa Ejić, T(E) 10328."

 

"286. In the Indictment, the Prosecution alleges the instigation of crimes as a form of responsibility that the Accused bears both as an “individual” and as a participant in a JCE of the first category, or alternatively, of the third category. The alleged acts of instigation are dealt with in the Indictment as part of the JCE. With respect to the actus reus of instigation, the Prosecutor alleges that there are several ways in which the Accused instigated the key participants to commit the crimes charged: through his inflammatory speeches in the media, during public events, and during visits to volunteer units and other Serbian forces in Croatia and Bosnia and Herzegovina; by openly espousing and encouraging the creation by violence of a homogeneous Greater Serbia encompassing the territories specified in the Indictment; by calling publicly for the expulsion of Croatian civilians from parts of the Vojvodina region in Serbia (namely Hrtkovci, Nikinci, Ruma, Šid and other places bordering Croatia); […]"

"287. Moreover, the Prosecution claims that the Accused instigated the direct perpetrators of the alleged crimes: by using inflammatory and denigrating propaganda against non-Serbs in his speeches, publications and public appearances; by travelling to the frontlines to visit and encourage Serbian forces, including Šešeljevci, in the fight against non-Serbs; by dispatching high-ranking SRS/SČP members or commanders to spread his message of hate, revenge and ethnic cleansing; […]; and, more generally, by using propaganda techniques to create a climate of threat, to stoke fear and hatred amongst the Serbian and non-Serb populations, and to advance by all means available his vision of ethnically pure Serbian territory encompassing Serbia and parts of Croatia and BiH."

"289. The Accused disputes in general the allegations of the Prosecution which, according to him, are solely based on an erroneous or exaggerated interpretation of his words. For the Accused, the conditions for instigation have not been met because the Prosecution confuses the actus reus and the mens rea of instigation by relying on the same evidence – his speeches – in order to establish them. The Accused cites the judgement rendered in the Kordić case and the ICTR judgement in the Akayesu case to claim that incitement of hatred through speeches is not a crime under customary international law."

"290. Moreover, the Accused disputes the credibility of many witnesses. He further claims that other witnesses had been subjected to pressure by the Prosecution in order to sign preliminary statements that allegedly misrepresented their words."

"291. The Accused acknowledges that he advocated his ideology but considers that this was a lawful activity.³²⁶ On the allegation of systematic denigration of the non-Serb populations, he maintained that the term Ustasha is not abusive to Croats, that, contrary to the claims of the Prosecution, he never made generalisations such as: “all Croats are Ustashas, worse than the Nazis” and that the Prosecution ascribed words to him that he never uttered, as was confirmed by some of the witnesses. Moreover, the Accused alleges that he could not be held responsible for creating a climate of terror since it was not he who had created it but Tuđman and his Ustashas. The Accused maintains that there was nothing to prevent him from calling on the Serbian volunteers to fulfil their legal obligation by enlisting, and that the Prosecution did not present any evidence to support its allegations that the Accused had ordered or invited volunteers to commit crimes in the zones of conflict. With respect to the requirement of a substantial contribution in instigating the crimes committed, the Accused considers that it has not been proved since none of the volunteers have been convicted of war crimes."

"326. The Chamber notes that the Accused’s demonstration relied on the legal analysis of the actus reus of instigation as a mode of participation made by the Chamber in its oral Decision of 4 May 2011, pursuant to Rule 98 bis of the Rules of Procedure and Evidence. See T(E) 16826-16886 (98 bis Decision) and the partially dissenting opinion of Presiding Judge Antonetti (T(E) 16886-16925, 16926-16988)."

"292. The Accused acknowledges that anyone who is engaged in political activities has an influence on public opinion and is aware of this influence, but that in this case it is important to assess the extent of such an influence. He confirms that he was aware of the war context at the time, but says that he was not the only one to be aware of it and that others have not been prosecuted for this. He maintains, moreover, that the Prosecution did not present any proof that he had been informed of the criminal past of some of the volunteers. He also alleges that none of the testimonies have shown that he knew what was happening in the field and that crimes were being committed in the combat zones to which the SRS/SČP volunteers had been deployed. With regard to his alleged intent to provoke his listeners into persecuting the non-Serb population for political or religious reasons, the Accused maintains that this has not been established by the Prosecution."

"297. The Accused does not deny that he promoted his ideology from speaker’s platforms, at meetings, press conferences, through publications, books or by other legitimate means such as propaganda at the times relevant to the Indictment.³³²"

"332. The Accused asserts, and this is confirmed by Defence Witness Aleksandar Stefanović, that he used propaganda as a means of achieving his political goals (see Final Brief of the Accused, pp.101-102 and p. 496)."

"298. The Chamber received several pieces of evidence on the use of propaganda techniques by the Accused, in particular in the testimony and report of Anthony Oberschall.³³³ According to him, propaganda is a persuasion technique that spreads ideas, uses images, slogans and symbols that influence our prejudices and our emotions and whose goal is to lead the person listening to these messages to accept and adopt the position of the person conveying the message, regardless of whether their content is true or not.³³⁴ It is different from “deliberative discourse” in that it involves the repetition of messages whose aim is to stimulate fear in the public and to direct it to support the political leaders resorting to violence aimed at eliminating this threat.³³⁵ During his testimony Anthony Oberschall used several examples taken from the Accused’s speeches336 to explain that his speeches between 1990 and 1994 were characterised by “xenophobic nationalism” exacerbated by the incessant repetition of the same discourse which did not change depending on the media or the different audiences that he addressed.³³⁷ According to him, the Accused used persuasion techniques such as fear, victimisation, repetition and negative stereotypes which are well-known propaganda techniques.³³⁸ For Oberschall, the speeches of the Accused contained a heavy dose of misinformation or lies,³³⁹ such as the reference to “a civilized exchange of population” rather than speaking of an ethnic cleansing.³⁴⁰"

"333. P5, P3 and P4. See “Decision regarding the Admission of Evidence Presented during the Testimony of Anthony Oberschall”, 24 January 2008, paras 2, 13 and 24 

334. P5, p. 4. See also Anthony Oberschall, T(E) 2053-2054

335. Anthony Oberschall, T(E) 1971-1975.

336. See Exhibit P1, “Video – Šešelj’s speech at Jagodnjak, clip B”, April 1991; P2, “Video - Without Incisions and without Anesthesia, TV NS”, May 1991; P6, “Video - interview with TV Politika, clip A”, 25 July 1991; P7, “Video -interview with TV Politika, clip C”, 25 July 1991; P8, “Video - interview with TV Politika, clip D”, 25 July 1991; P9, “Video - interview with TV Politika, clip E”, 25 July 1991; P10, “Video - interview with TV Politika, clip F”, 25 July 1991; P11, “Video - The Other Side of the Face on TV Novi Sad, clip A”, 1 June 1991; P12, “Video – The Other Side of the Face on TV Novi Sad, clip B”, 1 June 1991; P13, “Video – The Other Side of the Face on TV Novi Sad, clip D”, 1 June 1991; P14, “Video – Šešelj’s speech at Jagodnjak, clip A”, April 1991; P17, “Video – current affairs programme on NTV Studio B”, 6 November 1991; P18, “Video – visit by SRS leadership to Banja Luka on RTS”, 13 May 1993; P20, “Video - Vukovar 1991, clip C”; P21, “Video – Vukovar, The City of Lost Souls, clips A, B and C”.

337. Anthony Oberschall, T(E) 1969-1970. See P5, p. 2, for reference to the relevant period (1990-1994).

338. Anthony Oberschall, T(E) 1975-1977, 1980-1981, 1983-1984.

339. Anthony Oberschall, T(E) 2076.

340. P5, p. 24, referring to excerpts nos 187, 189, 191, 192 and 251 of Annex 2 of the report. For other examples of misinformation and lies, see also P5, pp. 25 to 27."

 

"299. The Chamber analysed several exhibits, such as P1337, which is an extract from the Accused’s book entitled Ideology of Serbian Nationalism, published in September 2002. In it, the Accused says that propaganda is based on the fact that the majority of people are ready to believe indiscriminately in everything they read, hear or see on television;³⁴¹ or Exhibit P1201 which contains the transcript of a discussion on 12 June 1992 on TV Politika, in which the Accused emphasised that he had studied the mass psychology of fascism.³⁴²"

"341. P1337, p. 7.

342. P1201, p. 16"

 

"300. While the Chamber acknowledges together with the Accused that the propaganda of a “nationalist” ideology is not criminal in itself, contrary to the Accused’s claims, it must analyse and qualify, in accordance with the law applicable in this matter, the statements made by the Accused and their potential impact on the perpetrators of the crimes referred to in the Indictment, in light of the cultural, historical and political context.³⁴³"

"343. See in this respect the Nahimana et al. Judgement, paras 1011, 1020-1022; Nahimana et al. Appeal Judgement, paras 698-703; Akayesu Judgement, para. 557; Bikindi Judgement, para. 247; Nzabonimana Appeal Judgement, para. 134; ECHR, Perinçek v. Switzerland case, Appeal Judgement of 15 October 2015, paras 207, 234 and 280."

"301. The Chamber, by a majority, Judge Lattanzi dissenting, did not consider as relevant evidence the speeches not covered by the period in the Indictment, deeming that the present judgement should be based on the facts and speeches that fall within the temporal framework precisely defined by the Prosecution. For these reasons, the Chamber rejected the speeches of no known date or transmitted by an unverified source. Furthermore, the majority only assigned limited probative value to press articles that did not come from official SČP/SRS newspapers –Velika Srbija and Zapadna Srbija – or ones that were not published in the works of the Accused, and whose authors were not heard as witnesses – and for which no other contextual element was provided."

"302. The Chamber is of the opinion that, for several reasons, the press articles must be analysed with great caution, depending on which paper they come from. A press article often only reflects the subjective view of its author, whose view might be affected by political affiliation; some newspapers may also exaggerate or misrepresent statements made or the nature of events. When the author of an article in question has not appeared before the Chamber to testify, the judges and the parties are unable to test the reliability of the content of the article."

"303. Similarly, the Chamber, by a majority, Judge Lattanzi dissenting, did not consider as detrimental to the Accused his speeches that could be assessed as nothing more than support for the war effort,³⁴⁴ as electoral speeches or as speeches that concerned territories that did not come under the geographic scope of the Indictment.³⁴⁵ "

"344. Judge Lattanzi does not have the same notion as the majority of what constitutes a speech in support of the war effort.

345. Thus, for example, the Chamber did not accept as relevant proof the speeches of the Accused calling for the expulsion of the Albanian minority in Kosovo and Macedonia and using a pejorative (Shiptar) when speaking of this minority (see for example P1203, pp. 11-12; P1197; P1213, p. 22)."

"304. The Chamber has exhibits P1283 and P1285 on the matter of the speech on the way to Vukovar, which the Accused gave on 7 November 1991."

"305. In Exhibit P1283, an article in the Politika daily, entitled “We’re Fighting against Fascism” of 8 November 1991, the Accused is mentioned as having stopped in Šid where he attended a press conference, the content of which, however, is not reported.³⁴⁶"

"346. P1283, p. 4."

"306. According to Exhibit P1285, an article of 8 November 1991 also from Politika and entitled “Mopping-up Operation between Bosut and Sava to Be Launched”, while on his way to Vukovar to see the Serbian volunteers, the Accused stopped off in Šid on 7 November 1991 and held a press conference there. He allegedly stated that “this entire area will soon be cleared of the Ustashas” and told the Catholics in the region that they would have nothing to fear if they did not cooperate with the Ustashas and join their units."

"307. […] However, more decisively, the Chamber, by a majority, Judge Lattanzi dissenting,³⁴⁷ does not deem that the reported speeches, even if we assume they have been proven, can be considered as acts of instigating a crime. Their context rather suggests that these were speeches aimed at reinforcing the Accused’s political party.³⁴⁸"

"347. For her part, Judge Lattanzi considers that the content of what was said did constitute a form of instigation. However, as the only proof for this speech is a press article that was not admitted through a witness and was not from one of the Accused’s newspapers, it should be analysed in light of the totality of the evidence. 

348. See for example: VS-004 T(E) 3380 (the term Ustasha, as used by the Accused, meant “Croats who massacred the Serbs during the Second World War”); P1074 para. 69 (the term Ustasha, as used by the Accused, referred to the uniformed and armed enemy)."

"308. With respect to the Accused’s speeches in Vukovar on 12 and 13 November 1991, the Chamber has heard many testimonies and seen several exhibits that show they were given and confirm their content.³⁴⁹"

"349. In addition to the evidence mentioned below, see also, for example: C10, para. 37; C11, pp. 15-16; P1056 under seal, paras 37-39; P1058 under seal, paras 45-47; P1372 under seal, pp. 1-2."

"309. Witness VS-027 said that on 13 November 1991 he had heard the Accused say in front of high-ranking members of the Serbian forces that, “No Ustashas must leave Vukovar alive.”³⁵⁰"

"350. VS-027, T(E) 14579-4580 (closed session); P1370 under seal, p. 27, but see VS-027, T(E) 14574-14576 and 14591 (closed session); P868 under seal, T. 11683 to 11687. See also VS-016, T(E) 11119-11120, 11170-11171, 11173-11174 (closed session), 11192-11193, 11196-11197, 11290 (closed session)."

"310. According to Witness VS-007, a member of the SČP who was in Vukovar, ³⁵¹ the Accused came to Vukovar around 11 November 1991 for a surprise visit to the SRS volunteers. ³⁵² He explained that the Accused was surrounded by a crowd of at least fifty volunteers, members of the Leva Supoderica unit and soldiers from the Guards Brigade whom he encouraged through his words and by his presence, ³⁵³ telling them in particular to “fight heroically against them [Ustashas], show no mercy”.³⁵⁴ Witness VS-007 also explained that, on the evening of 11 November 1991 or the following day, the Accused cruised around town in a vehicle with a loudspeaker, addressing the Croatian soldiers; the witness gave several versions of what was said, either remembering a call to surrender, telling the “Ustashas” that they would be given a fair trial, or the fact that if they did not do so, they would die.³⁵⁵"

"351. VS-007, T(E) 6028, 6030, 6032, 6069, 6070, 6072 (closed session).

352. VS-007, T(E) 6069-6071 (closed session).

353. VS-007, T(E) 6070- 6072 (closed session), 6093, 6096, 6097-6098 (closed session).

354. VS-007, T(E) 6096 (closed session).

355. VS-007, T(E) 6073 (closed session), 6099-6100 (closed session)."

"311. Witness VS-002, a member of the Serbian forces that were in Vukovar during the events,³⁵⁶ claimed that the members of the Guards Brigade had called the Croatian soldiers over the loudspeaker to surrender, but he had not heard that the Accused had done the same.³⁵⁷"

"356. VS-002, T(E) 6450, 6451 (private session), 6458, 6461 and 6473.

357. VS-002, T(E) 6614-6616."

"312. Witness Vilim Karlović, a member of the National Guards, asserted having heard on the streets of Vukovar, sometime between 10 and 15 November 1991, after the fall of the town, a pre-recorded call to surrender in a voice that was identical to that of the Accused, saying: “Ustashas surrender. There’s no need to lay down your lives anymore.”³⁵⁸"

"358. Vilim Karlović, T(E) 4685-4686, 4708-4709."

"313. Witness Vesna Bosanac, who became Director of the hospital in Vukovar in the summer of 1991,³⁵⁹ explained that the Accused had come to Vukovar in October and November 1991 and that she had heard him encouraging the soldiers, “whether they were volunteers or any other unit members.”³⁶⁰"

"359. Vesna Bosanac, T(E) 11391.

360. Ibid., T(E) 11421-11422."

"314. In his prior statement, Witness Zoran Rankić explained that in mid-November 1991 he had gone to Vukovar together with Zoran Dražilović and the Accused. The Accused was welcomed by Veselin Šljivančanin, Mile Mrkšić and Miroslav Radić in front of at least fifty volunteers who fired into the air in approval, and stated that “Not one Ustasha is to leave Vukovar alive.”³⁶¹ The witness also said that on several occasions, he had seen the Accused saying the following over the megaphone: “Ustashas, you are surrounded. Surrender, because you have no way out.”³⁶² The witness also stated that in his opinion the term “Ustasha” was directed at Croatian soldiers; he believes that people may have their own understanding of this term.³⁶³ However, in court the witness changed his testimony, claiming that what he said had not been accurately reproduced, that he did not remember the Accused having said that “Not one Ustasha is to leave Vukovar alive,” and that he had simply called on the Croats to surrender.³⁶⁴ 

"361. P1074, pp. 17-19.

362. P1074, p. 19.

363. P1074, pp. 18-19; P1075, p. 4.

364. Zoran Rankić, T(E) 15952, 16058-16059."

"315. Witness Nebojša Stojanović said in his prior statement that he had been present during the visit to Vukovar by the Accused, who was accompanied by Vakić, and Kameni and his unit; according to the witness, the Accused was there to encourage the volunteers. ³⁶⁵ Nebojša Stojanović also said that every day Chetnik music and a pre-recorded message by the Accused were played from a loudspeaker mounted on a military vehicle, calling on the Croats to surrender and promising to spare their lives.³⁶⁶ However, in court the witness changed his testimony, claiming that he had not seen the Accused but had only heard that he had been there; nonetheless, he confirmed having heard the voice of the Accused being broadcast over the loudspeaker mounted on a military vehicle, telling the Croats to surrender in order to avoid a bloodbath in Vukovar.³⁶⁷"

"365. P526, p. 10; P527, p. 5; P528, p. 10. 366 P526, p. 10; P527, p. 5; P528, p. 10.

366. P526, p. 10; P527, p. 5; P528, p. 10.

367. Nebojša Stojanović, T(E) 9692-9694, 9781."

"316. In an interview for the BBC documentary The Death of Yugoslavia, the Accused acknowledged that he had visited the Vukovar front a few times, where he even briefly took part in combat, and that his volunteers had been engaged until the fall of the town.³⁶⁸"

"368. P644, p. 12."

"317. Finally, in his testimony in the Milošević case, the Accused admitted going to Vukovar twice, first 30 days and then 20 days before the fall of the town, and making statements on Serbian radio in Vukovar calling on the Croats to surrender and promising them protection under the rules governing the treatment of prisoners of war.³⁶⁹ This time he also specified that the term “Ustasha” referred to fascist Croats who had fought on the side of the Nazis in the Second World War and had massacred Serbs.³⁷⁰ In the context of the 1990s, this term for him meant the Croatian extremists, promoted by Franjo Tuđman, who persecuted Serbs.³⁷¹"

"369. P31, T. 43449-43456, 43564 and 44130.

370. P31, T. 42965, 43090, 43106, 43204-43205, 43818, 43829 and 44132.

371. P31, T. 43093, 43098, 43099, 43205, 43319, 43818 to 43820, 43875, 44106, 44114, 44116, 44274 and 44276."

"318. In light of the relevant facts set out above, it seems that the speech on the way to Vukovar (of 7 November 1991) and the speech in Vukovar (around 12-13 November 1991) had been given by the Accused.³⁷² However, the Chamber notes the contradictions between witnesses and the variations between a number of statements by the same witnesses. These variations sow a seed of doubt as regards the exact content of the Accused’s statements. Incidentally, even if the statements ascribed to the Accused in their most controversial version are accepted, the Chamber, by a majority, Judge Lattanzi dissenting, cannot dismiss the reasonable possibility that the speeches were made in a context of conflict and were aimed at reinforcing the morale of the troops on the Accused’s side, rather than being an appeal to them to show no mercy (for otherwise, calling on the Ustashas to surrender over a megaphone in the streets of Vukovar would make no sense). Moreover, the Chamber notes that testimony has been heard according to which the Accused’s visit to Vukovar was essentially a public relations exercise, without any military significance, by a politician seeking publicity who had no control over the operations; it was the semi-theatrical posturing of a comic-opera general.³⁷³"

"372. Judge Antonetti subscribes to the finding that the Accused held speeches on the way to Vukovar and in Vukovar. However, with regard to the content of the Vukovar speeches, he found for his part that the contradictions arising from witness testimonies do not allow a reasonable trier of facts to qualify the exact nature of the so-called Vukovar speeches.

373. VS-007, T(E) 6049, 6097 (closed session); VS-027, T(E) 14595 (closed session); P1056 under seal, pp. 8-9; P1058 under seal, p. 11. The majority moreover recalls that the Chamber has already found that the volunteers and soldiers in the field had been placed under a single command, that of the JNA or that of the TO, depending on the case."

"319. The Chamber then turned its attention to a speech purportedly given by the Accused in Mali Zvornik in March 1992, as alleged by the Prosecution in the Indictment."

"320. Paragraph 22 of the Indictment and paragraph 91 of the Prosecution Pre-Trial Brief make an express reference to this speech that was allegedly given in March 1992."

"321. These allegations are based on the testimony of VS-2000, the testimony of the Accused in the Milošević case and a report of the Ministry of Defence of the Republic of Serbia dated 20 April 1992, filed under number P831."

"322. According to VS-2000, the Accused allegedly said the following: Brothers, Chetniks, [...] The time has come for us to give the balijas tit for tat. [...] The Drina, the River Drina, is not a boundary between Serbia and Bosnia. It is the backbone of the Serbian state. Every foot of land inhabited by Serbs is Serbian land. Let’s rise up, Chetnik brothers, especially you from across the Drina. You are the bravest. [... L]et us show the balijas, the Turks and the Muslims [...] the direction to the east. That’s where their place is.³⁷⁴"

"374. VS-2000, T(E) 13994-13995."

"323. Almost 1,000 people had gathered outside, including Muslims who had come to protest against this “nationalist” meeting,³⁷⁵ as well as a large number of policemen from Serbia.³⁷⁶ According to VS-2000, a little while after the Accused left the hall, having spoken for five or six minutes, a general fight broke out outside.³⁷⁷ The following day, a photo of the Accused with a band-aid on his face and a bandage on his hand was published in the newspapers.³⁷⁸"

"375. Ibid. T(E) 13992-13993, 14039-14040, 14042-14043.

376. Ibid. T(E) 13995-13996, 14042.

377. Ibid. T(E) 13995-13997, 14044, 14046, 14131-14132.

378. Ibid. T(E) 13995-13997, 14046-14047."

"324. The Accused maintained that this speech was not given in March 1992, but in August 1990.³⁷⁹ This statement however contradicts what the Accused said when he testified in the Milošević case, where he confirmed that he had given the following speech in Mali Zvornik in March 1992:³⁸⁰ Dear brother Chetniks, especially you across the Drina, you’re the bravest, and we’re going to clear up Bosnia from the pagans and show them the road to the east where they belong."

"379. VS-2000, T(E) 14058, 14062-14063, 14085-14086.

380. P31, T. 43724-43726. The Chamber notes that in so doing, the Accused was replying to a question asked by Slobodan Milošević."

"325. In Milošević, the Accused also stated that he had attacked fundamentalist Muslims and pan-Islamists who wanted Bosnia to separate from Yugoslavia, and called them “pogani”; according to him, this should be translated as “waste” or “faeces.”³⁸¹"

"381. P31, T. 43725."

"326. Finally, according to the Republic of Serbia Ministry of Defence report of 20 April 1992, the Accused did indeed go to Mali Zvornik on 17 March 1992.³⁸² This report also says that the Accused left after a brief conversation, ³⁸³ which confirms what VS-2000 said, i.e. that the Accused spoke for five or six minutes." 

"382. P831, p. 2.

383. Idem."

"327. The Chamber, by a majority, Judge Antonetti dissenting,³⁸⁴ consequently finds that the above speech was given by the Accused in March 1992 in Mali Zvornik. However, the precise circumstances surrounding the speech, and described by VS-2000, have not been established. The Chamber deems that it is possible that Witness VS-2000 confused what happened during the speech in Mali Zvornik in March 1992 with another speech given by the Accused at a different time."

"384. Judge Antonetti deems that Witness VS-2000 was at least mistaken about the date of this speech. Moreover, Judge Antonetti has doubts about the content of what was said."

"328. The Chamber, by a majority, Judge Lattanzi dissenting, is however not in a position to find, beyond all reasonable doubt, that by calling on the Serbs to “clear up” Bosnia of the “pogani” and the “balijas”, the Accused was calling for “ethnic cleansing” of the non-Serbs of Bosnia. In fact, the majority considers that, given the context, the evidence provided by the Prosecution is not sufficient to exclude the possibility that this call by the Accused was more a matter of contributing to the war effort by galvanising the Serbian forces. Moreover, nothing has established that this speech – the words spoken that were described as a “brief conversation” in the police report tendered into evidence by the Prosecutor – had even a limited impact."

"329. According to the Prosecution, on 6 May 1992, the Accused made an “inflammatory” speech in the village of Hrtkovci, calling for the expulsion of Croats from the area. As a result of this speech, many Croatian inhabitants decided to leave the village. In his 84 bis Statement and Final Brief, the Accused stated that this speech was made as part of his electoral campaign and that non-Serbs had not been persecuted, expelled or forcibly transferred. According to him, they had only participated in voluntary exchanges of homes on the basis of contracts, and these exchanges had started well before May 1992."

"330. The Chamber is able to rely on numerous testimonies and exhibits³⁸⁵ describing the circumstances and the content of the speech made by the Accused on 6 May 1992 in Hrtkovci, but especially on Exhibits P547 and P548, to which the Chamber has assigned high probative value."

"385. The Chamber relied on the following evidence: Ewa Tabeau; Yves Tomić; Katica Paulić; Aleksa Ejić; Franja Baričević; Goran Stoparić; VS-007; VS-034; VS-061; VS-067; VS-1134; C10; C26 under seal; P31; P164; P537 under seal; P547; P548 under seal; P549; P550; P551 under seal; P554; P555; P556; P557; P558; P559; P560; P561; P564 under seal; P565; P566; P571; P631; P836; P1049 under seal; P1050 under seal; P1056 under seal; P1104 under seal; P1201; P1215; P1300; P1330."

"331. According to Exhibit P547, a transcript of the “Promotion Rally of the Serbian Radical Party” held on 6 May 1992 in Hrtkovci and published in his book The Devil’s Apprentice, the Accused stated that the SRS “is fighting for the restoration of an independent and free Serbian state” that will encompass Serbian territories defined by the Karlobag-Karlovac-Mitrovica line within Yugoslavia,³⁸⁶ and that the village of Hrtkovci was in Serbian Srem.³⁸⁷ He expressed his wish for democratic multi-party elections to be held quickly.³⁸⁸ He also stated that there was no room for Croats in Hrtkovci; that only the Croats who had shed blood in combat together with Serbs, who were described as “Catholic Serbs”, could remain; that Croats had to leave Serbia and that the Serbian “refugees” would move into the houses of Croats who no longer lived in Hrtkovci and whose addresses would be provided by the police, and that these Croats would have “nowhere to return”; that the Serbian refugees would give the Croats their former addresses in Zagreb in exchange; that the Croats who had not yet left of their own accord would be escorted to the border by bus; he said he firmly believed that the Serbs from Hrtkovci and the surrounding villages would be able to preserve their unity and would “promptly get rid of the remaining Croats in [their] village and the surrounding villages.”³⁸⁹"

"386. P547, pp. 2-4. 6.

387. P547, p. 4; Aleksa Ejić, T(E) 10357-10358.

388. P547, p. 6; Aleksa Ejić, T(E) 10338.

389. P547, pp. 4-5, 9."

"332. What was said in this speech was confirmed by Exhibit P548 from which it transpires, moreover, that at the end of his speech, slogans such as “Ustashas out”, “Croats, go to Croatia” and “This is Serbia” were chanted by the crowd.³⁹⁰"

"390. P548 under seal, p. 2."

"333. On the basis of the evidence presented, the Chamber has found, by a majority, Judge Antonetti dissenting, that the speech made by the Accused on this occasion clearly constitutes a call for the expulsion or forcible transfer of Croats from the village. However, the Chamber deems, by a majority, Judge Lattanzi dissenting, that the Prosecution has failed to prove that this speech was the reason for the departure of the Croats³⁹¹ or for the campaign of persecution that the Prosecution alleges was carried out in the village following the speech. It notes, on this matter, the weakness of Expert Tabeau’s report on which the Prosecution relied and which, rather than focus on the departures that followed the speech of 6 May 1992, provides a comprehensive list of the departures that took place throughout 1992, while neglecting to specify the reasons behind them. The majority also notes the unreliability of the other evidence presented in order to establish a connection between the speech made by the Accused and the departures of the Croats. The credibility of Witness VS-061 was severely tested during cross examination. Given the lack of a specific war context in Vojvodina, the majority holds that the evidence on the apparently disparate reasons for the departure of some Croats is insufficient in the extreme; given the questionable methods of evaluation, it was not possible to determine the number of departures, and sometimes even whether they took place."

"391. Witness VS-067 stated that the Accused’s speech had led him to leave Hrtkovci. See VS-067, T(E) 15450 (private session); P1049 under seal, pp. 3-4; P1050 under seal, p. 5. However, even if we assume that this single departure had been provoked by the speech made by the Accused, this is not sufficient to establish the crime of deportation, especially as the majority did not find that a widespread or systematic attack against Croatian civilians had taken place."

"334. As part of its analysis of the evidence relating to the speeches made by the Accused in other locations during the period relevant to the Prosecution, the Chamber was in a position to examine, in particular, the report and testimony of Anthony Oberschall. The Chamber thus noted the different warnings the Accused issued to the Croats, to which Oberschall refers,³⁹² and the examples Oberschall provided of statements denigrating non-Serbs. ³⁹³ Nonetheless, the Chamber, by a majority, Judge Lattanzi dissenting, is of the opinion that these warnings should be seen in the context in which they were made; that Witness Oberschall had not taken sufficiently into account the context, which he sometimes failed to identify correctly, subsequently concluding that this constituted “a tremendous change;”³⁹⁴ that in any case it is not enough for a statement to be insulting or defamatory to qualify as an act of instigation to commit war crimes. Its intrinsic and contextual gravity must be taken into account."

"392. P5, pp. 18-22. See also: Goran Stoparić, T(E) 2310-2312, 2440; P1075, p. 17; P1215, pp. 7 and 24; P35, pp. 2-6; P153, pp. 41-43; P179."

"335. Nevertheless, the Chamber, by a majority, Judge Antonetti dissenting, was able to find that two other speeches (in addition to the one made in Hrtkovci on 6 May 1992), made in the Serbian Parliament on 1 and 7 April 1992, clearly constituted calls for the expulsion and forcible transfer of Croats.³⁹⁵"

"395. During his testimony in the Milošević case, the Accused confirmed that he had made these two speeches (P31, T.44170-44175)."

"336. In the first speech on 1 April 1992, while discussing a draft law on refugees, the Accused stated the following: If the Croats have seized Serbian houses in Zagreb, Rijeka and other Croatian cities, it is only normal that Serbian refugees occupy the remaining Croatian houses […]. 396 […] if the Croats are expelling Serbs from their homes on a large scale, then what are the Croats waiting for, here in Belgrade, what are the Croats in Serbia waiting for? An exchange of population: we expel as many Croats from Belgrade, as TUĐMAN has expelled Serbs from Zagreb. Any Serbian family, which arrives from Zagreb, can go to the address of a Croat in Belgrade, and give him his keys and say, go over to Zagreb, an exchange.³⁹⁷ […] [I]n International Law, there is the principle of retortion, which in the Serbian language means retaliation. If one state expels members of an ethnic minority from its territory to another state where the majority of this expelled nation lives, it is permissible under International Law to implement this retaliation, and execute a counter-expulsion of the ethnic minority of the state that was the first to expel. Anyway, such population exchanges are not a world novelty. Anyway, if we had grounds after World War Two to expel, who knows how many, hundreds of thousands of Germans because of their collaboration and servitude to fascist Germany, there are many more grounds for the Croats to be expelled, because the crimes, which the Croats have perpetrated, the Germans could not even dream about. […] It is according to the same principle that TUĐMAN resorted to, to expel the Serbs from Croatia, that we shall expel the Croats from Serbia.³⁹⁸ [… W]e are going to expel the Croats, exercising the same right that TUĐMAN has exercised to expel the Serbs. […] We are not going to resort to genocidal activities, because it is not in the blood of us Serbs. We are not going to start killing you, of course. We are simply going to pack you into trucks and trains and let you manage in Zagreb.³⁹⁹"

"393. P5, Annex 2 (see for example Exhibits 1, 15, 85, 192).

394. Anthony Oberschall, T(E) 2155-2160.

396. P75, p. 2. The Chamber notes that exhibit P75 is an excerpt from the Accused’s book Speeches of the Deputies published in 1993.

397. P75, p. 3.

398. P75, pp. 4-5.

399. P75, p. 6. The Chamber notes that this speech was also reprinted in the report of Anthony Oberschall (see P5, Annex 2, record number 182)."

"337. The second speech of 7 April 1992 reiterated the same message: “[P]erhaps the best solution -- if they pity the Croats so much -- would be simply putting them on buses and trucks and taking them to Zagreb.”⁴⁰⁰"

"400. P75, p. 7" 

"338. While it is true that the Chamber finds, by a majority, Judge Antonetti dissenting, that these speeches are barely disguised calls for expulsion, the Chamber, by another majority, Judge Lattanzi dissenting, deems that these statements, which can be categorised as opposition to the official Serbian policies, are the expression of an alternative political programme that was never implemented. The Prosecution has not succeeded in assessing their impact, and the work of Witness Oberschall does not seem to assist greatly. At the end of his testimony he admitted, in reply to a question from Judge Harhoff, that it was almost impossible to establish the impact of these speeches.⁴⁰¹ The same witness, Oberschall, had previously indicated that he had not been able to identify direct calls to commit crimes by the Accused."

"401. Anthony Oberschall, T(E) 2224-2225."

"339. The lack of any measurable impact, taken in conjunction with the certainty that, at times, calling on the Serbian authorities to resort to retortion against the Croats did not win any favour,⁴⁰² does not permit the majority to find that there had been incitement to war crimes, even if the most inflammatory speeches are taken into account, in particular the ones made in Hrtkovci and before the Serbian Parliament."

"402. The Accused’s speech in parliament was the subject of harsh criticism by the parliamentary authorities, which clearly disassociated themselves from the content (see P75, pp.7-8)."

"340. Similarly, it is not possible to rely on the collection and categorisation of the speeches studied by Oberschall – whose dates, sources, intended audience and context were not always specified or clarified by the Prosecution – to support a finding of instigation. Such context is an important element in the analysis. Its absence makes determining the impact of the speeches unrealistic. In fact, a call to combatants and the authorities, an interview given to a journalist (for which there is no indication whether it had been broadcast and, if so, to what audience) and the statements made at an electoral campaign rally or in parliament by a deputy from a minority party, do not necessarily have the same impact, if any."

"341. This lack of certainty with respect to the impact of the Accused’s speeches does not mean that the Accused did not have some influence and sway, especially with members of his ^party403 or with some combatants.⁴⁰⁴ One of them – VS-002 – stated that the Accused “was a vojvoda. We would not have refused his orders.”⁴⁰⁵ Other witnesses specified that the Accused had been the ideological leader of the volunteers,⁴⁰⁶ who looked up to the Accused as if he were a god.⁴⁰⁷ The Chamber also heard several witnesses who claimed that the Accused’s speeches had a significant impact on those who listened to them.⁴⁰⁸ However, as in the case of Oberschall’s testimony, these testimonies do not provide any reliable indicia through which the impact of the Accused’s speeches could be measured or even remotely discerned in any concrete way."

"403. C13, p. 9.

404. VS-002, T(E) 6556.

405. Ibid. T(E) 6557. The Chamber notes on this point that the Accused explained in an interview with Radio Belgrade on 13 February 1993 that he had been appointed a Serbian Chetnik vojvoda on account of his activities within the SČP (see P1213, p. 2).

406. VS-007, T(E) 6097 (closed session); Vesna Bosanac, T(E) 11421-11422.

407. VS-033, T(E) 5543 and 5544. VS-007, T(E) 6099 (closed session); Fadil Kopić, T(E) 5912-5913, 5920.

408. Goran Stoparić, T(E) 2442 and 2443; VS-016, T(E) 11120, 11171 and 11181; Aleksa Ejić, T(E) 10343; VS-061,T(E) 9924."

"342. Moreover, the insubstantial evidence presented by the Prosecution, together with the poor argumentation set out in its Closing Brief, does not allow the majority to find beyond all reasonable doubt that the speeches made on 1 and 7 April 1992 were heard by, or could have influenced, the perpetrators of the crimes committed in April 1992 in Mostar, Zvornik and the Sarajevo area."

"343. With regard to the totality of evidence, the Chamber, by a majority, Judge Lattanzi dissenting, finds that the Prosecution did not present evidence of a causal link between the Accused’s speeches of 1 and 7 April 1992 and the crimes committed in April 1992 in the cities of Mostar, Zvornik and in the area of Sarajevo, or that the crimes committed between May 1992 and September 1993 could be attributed to the Accused, even indirectly. In these conditions, the majority is not in a position to qualify the speeches the Accused made on 1 and 7 April 1992 as physical acts of instigation."

"344. The Chamber analysed in detail the factual evidence on such allegations, as part of its review of the context and the JCE. The majority rejected the JCE. It considered in particular that the Accused’s identitarian stance and his Greater Serbia ideology could be seen as being something other than the pursuit of a criminal plan. The majority is only able to make a finding based on its own assumptions. Therefore, the acts of encouragement by the Accused aimed at the SČP/SRS volunteers, which gave concrete expression to, and further developed, the political and ideological engagement of the Accused - which, as already ruled by the majority, was not criminal but may have been a matter of participating in the war effort - could not be considered criminal."

"345. In these conditions, the Chamber, by a majority, Judge Lattanzi dissenting, rejects the Prosecution’s allegation that the Accused was responsible, through instigation, for crimes committed by encouraging the creation of Greater Serbia through violence and the indoctrination of members of the SČP/SRS."

"346. In its Closing Brief, the Prosecution also argues that the Accused had instigated the commission of crimes as set out in the Indictment by not taking any measures against the Šešeljevci who had committed crimes against non-Serbs."

"347. This allegation is not set out in the Indictment but in the Pre-Trial Brief,⁴⁰⁹ in which the Prosecution maintains that the superior’s failure to punish past crimes may constitute instigation of future crimes. The majority deems that the Prosecution’s approach is once again ambivalent, to say the least, since it makes an allegation based on the premise that the Accused had superior authority over the SRS volunteers, while choosing not to argue de jure or de facto superior responsibility under Article 7 (3) of the Statute."

"409. Judge Lattanzi is of the opinon that the Chamber cannot take into consideration an allegation that has no basis in the Indictment."

"348. The majority recalls its findings that no formal or de facto superior/subordinate relationship has been proved between the Accused and his volunteers, who participated in crimes set out in the Indictment. The Chamber considers that the allegation of failure to punish cannot reasonably be accepted, as there was no hierarchical link that would make the Accused accountable in any way for the actions of his volunteers. Nevertheless, the majority notes that the Accused sanctioned volunteers on many occasions. However, this sanctioning was necessarily limited in its purpose and effect as it only involved the expulsion of volunteers from his party for conduct deemed unacceptable during the conflict. Witness Goran Stoparić is a case in point.⁴¹⁰ As far as activities in the field were concerned, the volunteers answered to a military authority."

"410. Goran Stoparić was expelled from the SRS in 1993, officielly for having obstructed the work of the SRS but, according to him, it was because he had taken sides with Milenko Petrić, President of the SRS, against Nikola Vasić, an SRS deputy (T(E) 2475, 2682-2683, 2692-2693). The Accused suggested during cross-examination that the reason for this expulsion was in fact Goran Stoparić’s participation, within the Army of Republika Srpska, in battles alongside Croats (T(E) 2690-2693)."

"349. The majority therefore rejects as baseless the Prosecution’s allegations of instigation on account of the Accused’s failure to take any measures against the Šešeljevci who allegedly committed crimes against non-Serbs."

"350. The Chamber, by a majority, Judge Lattanzi dissenting, finds that the Accused cannot be held responsible in the present case pursuant to Article 7 (1) of the Statute for having instigated the commission of crimes referred to in the Indictment."

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. 2809-2833, 3258-3263, 3328-3329:

"2809. Ndayambaje submits that the allegation regarding his responsibility for the killing of the abducted Tutsi women and girls was not pleaded in the Indictment and that such defect was neither curable nor cured.⁶⁴²⁰ He requests the Appeals Chamber to reverse all his convictions entered on the basis of his involvement in these killings.⁶⁴²¹ The Prosecution responds that the Trial Chamber correctly found that the defect of the Indictment concerning this allegation was cured and that Ndayambaje suffered no prejudice.⁶⁴²²

6420. Ndayambaje Notice of Appeal, paras. 40-45, 47, 59, 60, 62; Ndayambaje Appeal Brief, paras. 80-99, 120-125, 127-129, 131. See also AT. 21 April 2015 pp. 10, 11.

6421. Ndayambaje Notice of Appeal, paras. 49, 50, 64, 65; Ndayambaje Appeal Brief, paras. 99, 132.

6422. Prosecution Response Brief, paras. 2030-2039, 2047, 2049, 2052, 2517.

2810. The Appeals Chamber concurs with the Trial Chamber that the Indictment was impermissibly vague in relation to the allegation concerning Ndayambaje’s responsibility in the killing of the abducted Tutsi women and girls in Mugombwa. In particular, there is no mention in paragraph 6.37 of the Indictment, or anywhere else in the Indictment, of the abduction of the Tutsi women and girls, the specific date of the abduction, the presence of Ndayambaje at the Virgin Mary Statue and his role in the killing of the Tutsi women and girls. The Appeals Chamber will now discuss whether the Trial Chamber erred in finding that the defect in the Indictment in this regard was curable and, if so, whether the Trial Chamber erred in finding that the defect was cured.

2811. Ndayambaje submits that the Trial Chamber erred in linking the abduction of the Tutsi women and girls after his swearing-in ceremony on 22 June 1994 to paragraph 6.37 of the Indictment since this paragraph “was too vague and too general to support such a specific charge.”⁶⁴²³ Ndayambaje argues that the abduction of the Tutsi women and girls was a material fact that could not properly support a conviction unless it was formally incorporated in the Indictment and that the Trial Chamber radically transformed the Indictment in convicting him on this basis.⁶⁴²⁴

6423. Ndayambaje Appeal Brief, para. 80. See also Ndayambaje Notice of Appeal, paras. 42, 44; Ndayambaje Appeal Brief, para. 83; AT. 21 April 2015 pp. 10, 11, 17, 18, 20, 21.

6424. Ndayambaje Appeal Brief, paras. 81, 83. Ndayambaje contends that the Prosecution was aware of the allegations related to the abductions of Tutsi women and girls four years before the amendment of the indictment in August 1999 and that it should have requested an amendment of the indictment before the start of the trial. See ibid., para. 82.

2812. The Prosecution responds that Ndayambaje’s argument that paragraph 6.37 of the Indictment was too vague in order to be cured ignores that curing applies to vague allegations and that Ndayambaje simply disagrees with the Trial Chamber’s view without providing any reasons.⁶⁴²⁵

6425. Prosecution Response Brief, para. 2031.

2813. The Appeals Chamber finds that the allegation concerning Ndayambaje’s responsibility for instigating the killing of the abducted Tutsi women and girls from Mugombwa Sector fell within the broader allegation relating to the killing of Tutsis throughout Muganza Commune pleaded in paragraph 6.37 of the Indictment. Similarly, the Appeals Chamber does not consider that the material facts on which the Trial Chamber entered its convictions could have, on their own, supported separate charges. As vague as the charge set out in paragraph 6.37 was, the Indictment nonetheless pleaded the charge for which Ndayambaje was ultimately convicted, namely his participation in the killing of Tutsis in Muganza Commune from 20 April 1994.

2814. Accordingly, the Appeals Chamber considers that the defect in the Indictment regarding Ndayambaje’s responsibility for instigating the killing of the abducted Tutsi women and girls was curable. The Appeals Chamber now turns to consider whether the Trial Chamber erred in finding that the defect was cured by the provision of clear, consistent, and timely information detailing the factual basis underpinning the charge.

2815. The Trial Chamber found that the summary of the anticipated evidence of Witnesses QAR and QAF appended to the Prosecution Pre-Trial Brief and their respective prior written statements provided Ndayambaje with clear, timely, and consistent notice that following a meeting at Muganzacommune office in June 1994 an abduction of Tutsi women and girls took place in Mugombwa Sector by assailants from Saga, that he was present during the abduction, and that the women and girls were subsequently killed.⁶⁴²⁶

6426. Trial Judgement, paras. 4650-4654, referring to Witness Summaries Grid, WitnessQAR’s Summary, Witness QAF’s Summary, Witness QAR’s 1995 Statement, Witness QAR’s October 1997 Statement; statement of Witness QAF of 14 October 1997, disclosed on 4 November 1998 and on 15 November 2000 in French and English, respectively, admitted as part of Exhibit D158 on 4 March 2004 (“Witness QAF’s Statement”).

2816. Ndayambaje submits that the Trial Chamber erred in finding that the defect was cured and that he did not suffer prejudice from the lack of notice.⁶⁴²⁷ Specifically, Ndayambaje argues that the Prosecution Pre-Trial Brief did not provide any information regarding his alleged responsibility for instigating the abduction at the Virgin Mary Statue or regarding his genocidal intent or knowledge of the attackers’ genocidal intent.⁶⁴²⁸ Similarly, he contends that the Prosecution’s opening statement did not refer to this incident.⁶⁴²⁹ Ndayambaje also avers that Witnesses QAR’s and QAF’s summaries were not linked to paragraph 6.37 of the Indictment.⁶⁴³⁰

6427. Ndayambaje Notice of Appeal, para. 40; Ndayambaje Appeal Brief, paras. 84-97.

6428. Ndayambaje Appeal Brief, para. 85 (French). See also ibid., para. 92.

6429. Ndayambaje Appeal Brief, para. 94.

6430. Ndayambaje Notice of Appeal, para. 43; Ndayambaje Appeal Brief, paras. 86, 92; AT. 21 April 2015 pp. 69, 70.

2817. In addition, Ndayambaje claims that Witnesses QAR’s and QAF’s prior statements were inconsistent and insufficient to provide him with clear and consistent information on the abduction of the Tutsi women and girls and his involvement thereon.⁶⁴³¹ In particular, Ndayambaje argues that: (i) there is no reference to his presence during the abduction in Witness QAF’s Statement; (ii) Witness QAR’s 1995 Statement mentions a massacre that was linked by the witness to the events “at the Church in April 1994 and not to the swearing-in ceremony in June 1994”; (iii) Witness QAR’s May 1997 Statement does not refer to any abduction, an omission that was “excused by the [Trial] Chamber; thereby acting ultra vires”; and (iv) Witness QAR’s October 1997 Statement does not mention the fate of the four abducted girls to whom it refers.⁶⁴³² Ndayambaje adds that he was not provided with any information regarding the abduction of the woman named Nambaje on the basis of which he was also convicted.⁶⁴³³

6431. Ndayambaje Appeal Brief, paras. 87-92.

6432. Ndayambaje Appeal Brief, paras. 88-92.

6433. Ndayambaje Notice of Appeal, para. 47; Ndayambaje Appeal Brief, para. 93.

2818. Furthermore, Ndayambaje submits that the Trial Chamber erred in law in finding that he instigated the killing of the abducted Tutsi women and girls because this form of responsibility was not pleaded in the Indictment or any other documents of the Prosecution.⁶⁴³⁴ In the alternative, Ndayambaje argues that the Indictment failed to plead his genocidal intent.⁶⁴³⁵ Finally, Ndayambaje submits that the Trial Chamber erred in concluding that he suffered no prejudice from the lack of notice.⁶⁴³⁶

6434. Ndayambaje Notice of Appeal, paras. 59, 60, 62; Ndayambaje Appeal Brief, paras. 120-125, 127-129, 131 (French); AT. 21 April 2015 pp. 21, 67.

6435. Ndayambaje Appeal Brief, para. 131 (French). See also ibid., para. 85.

6436. Ndayambaje Notice of Appeal, paras. 45, 47; Ndayambaje Appeal Brief, paras. 80, 83, 84, 95-97.

2819. The Prosecution responds that the Trial Chamber correctly found that paragraph 6.37 of the Indictment was cured and that Ndayambaje received sufficient and consistent notice through the summaries and statements of Witnesses QAR and QAF that, following Ndayambaje’s Swearing-in Ceremony, Tutsi women and girls were abducted, that he was present during the abduction, and that the Tutsi women and girls were subsequently killed.⁶⁴³⁷ With respect to the form of responsibility, the Prosecution responds that the paragraphs in the charging section include all forms of responsibility under Article 6(1) of the Statute and that the Prosecution Pre-Trial Brief notified Ndayambaje that authorities, such as himself, instigated massacres.⁶⁴³⁸ It also reiterates that Ndayambaje did not raise any objection at trial concerning the modes of liability or argue in his closing brief that he did not know that he was charged pursuant to instigating.⁶⁴³⁹ It submits that the record reflects that Ndayambaje understood the nature of the case against him and was fully prepared to defend against this particular allegation, which shows that he did not suffer any prejudice.⁶⁴⁴⁰

6437. Prosecution Response Brief, paras. 2030, 2032-2035. See also AT. 21 April 2015 p. 40.

6438. Prosecution Response Brief, paras. 2047, 2048, referring to Prosecution Pre-Trial Brief, para. 28.

6439. Prosecution Response Brief, para. 2051, referring to Ndayambaje Closing Brief, para. 70.

6440. Prosecution Response Brief, paras. 2036-2039. See also AT. 21 April 2015 p. 41.

2820. The Appeals Chamber notes that, as underlined by Ndayambaje, neither the Prosecution’s pre-trial brief nor its opening statement provided information regarding the abduction of Tutsi women and girls and Ndayambaje’s responsibility in their killing. The Trial Chamber, however, found that Witnesses QAF’s and QAR’s summaries and statements provided the relevant information to Ndayambaje.

2821. The Appeals Chamber observes that Witness QAF’s Summary was marked relevant to the counts of conspiracy to commit genocide and direct and public incitement to commit genocide (Counts 1 and 4, respectively), and not to any of the counts for which Ndayambaje was convicted in relation to the killing of the abducted Tutsi women and girls. In addition, while providing information that the morning after a meeting in Muganza Commune, where Ndayambaje made a speech, Tutsi girls were taken from their hiding places and killed, Witness QAF’s Summary does not implicate Ndayambaje in the abduction of the Tutsi girls.⁶⁴⁴¹ In the view of the AppealsChamber, Ndayambaje could not have therefore reasonably understood on the basis of Witness QAF’s Summary that he was alleged to have instigated the killing of Tutsi women and girls, abducted after the ceremony, through the utterances he made at the Virgin Mary Statue. The Appeals Chamber finds that the Trial Chamber erred in concluding otherwise.

6441. The Appeals Chamber also notes that Witness QAF’s Statement does not provide any information suggesting that Ndayambaje was directly involved in this abduction of Tutsi women and girls.

2822. By contrast, Witness QAR’s Summary was marked relevant to Counts 1 through 9 of the Indictment which, in turn, were linked in the Indictment to paragraph 6.37 of the Indictment.⁶⁴⁴² The Appeals Chamber finds that the link between Witness QAR’s Summary and paragraph 6.37, together with the contents of the summary, put Ndayambaje on notice that the Prosecution intended to rely on Witness QAR’s evidence in support of the allegation of his participation in the massacres in Muganza Commune, as set forth in paragraph 6.37.⁶⁴⁴³

6442. See Ndayambaje Indictment, pp. 40-46. In relevant part, Witness QAR’s Summary reads as follows:

In June 1994, QAR attended a meeting chaired by Nteziryayo, also in attendance was Ndayambaje. [...] The next day, there was a house-to-house search for girls and women hiding. QAR states that four girls and a teacher were brought out. [...] The people were divided as to whether or not these women should be killed. It was decided to wait for Ndayambaje to ask him what to do with them. Ndayambaje arrived and said “were you not told that if you sweep the dirt towards your house, it heaps up and ends up chasing you out of your house? Then throw away the dirt.” QAR later heard that the women were taken by a group to the Mugombwa brickyard.

6443. See also supra, fn. 6239.

2823. Moreover, the Appeals Chamber finds that, contrary to Ndayambaje’s unsubstantiated submission,⁶⁴⁴⁴ it is clear that the incident described in Witness QAR’s 1995 Statement in which “women and girls who had been spared were massacred on the orders of Ndayambaje”, following an exchange of words regarding their fate between perpetrators from Saga and Ndayambaje, does not refer to another event in April 1994.⁶⁴⁴⁵ This is also clear from the fact that in this incident Ndayambaje is described as the bourgmestre, a position he only regained in June 1994.⁶⁴⁴⁶ The Appeals Chamber also rejects Ndayambaje’s argument that the Trial Chamber acted ultra vires because it “excused” the fact that Witness QAR’s May 1997 Statement did not mention the abduction incident.⁶⁴⁴⁷ As the Trial Chamber noted, Witness QAR’s May 1997 Statement “dealt solely with the massacre at Mugombwa Church in April 1994”.⁶⁴⁴⁸ It is not uncommon that a specific statement of a witness focuses, as a result of investigatory considerations, on a particular event.

6444. See Ndayambaje Appeal Brief, para. 88.

6445. Witness QAR’s 1995 Statement, p. K0181455 (Registry pagination).

6446. Witness QAR’s 1995 Statement, p. K0181455 (Registry pagination).

6447. See Ndayambaje Appeal Brief, para. 89.

6448. Trial Judgement, para. 4651.

2824. The Appeals Chamber also observes, as the Trial Chamber correctly noted,⁶⁴⁴⁹ that Witness QAR’s Summary is consistent with Witness QAR’s October 1997 Statement, in which it isspecified that the assailants were waiting for Ndayambaje to decide what to do with the abductees at the Virgin Mary Statue, as some of the abductors wanted to kill them.⁶⁴⁵⁰ Considering the chain of events, as described in the witness’s summary and October 1997 statement, and the fact that Witness QAR’s evidence was marked relevant, inter alia, to the counts of murder and extermination as crimes against humanity,⁶⁴⁵¹ the fate of the abductees was sufficiently clear to allow Ndayambaje to prepare an effective defence against the allegation. The Appeals Chamber, therefore, does not find any error in the Trial Chamber’s approach to Witness QAR’s prior statements.

6449. See Trial Judgement, para. 4651.

6450. Witness QAR’s October 1997 Statement, p. K0052277 (Registry pagination). Since Witness QAR’s Summary contained clear allegations against Ndayambaje and was expressly linked to the Ndayambaje Indictment in the Prosecution Pre-Trial Brief, the Appeals Chamber considers that Ndayambaje should have been prompted to examine the contents of Witness QAR’s statements disclosed to him upon reading Witness QAR’s Summary. See also supra, para. 1101.

6451. See supra, para. 2822.

2825. Notwithstanding the Trial Chamber’s erroneous reliance on Witness QAF’s summary and statement, the Appeals Chamber considers that Witness QAR’s Summary, which attributes to Ndayambaje a major and decisive role in the killing of the abductees, along with Witness QAR’s 1995 and October 1997 statements, which were disclosed to Ndayambaje before the beginning of the trial, provided him with timely, clear, and consistent information that his involvement at the Virgin Mary Statue in the killing of Tutsi women and girls who were abducted in June 1994 was part of the Prosecution case. The Appeals Chamber does not find that the lack of reference in the Prosecution’s pre-trial brief itself and opening statement to Ndayambaje’s responsibility for the killing of these Tutsi women and girls affected the timely, clear, and consistent information that was provided to Ndayambaje through Witness QAR’s summary and statements.

2826. Moreover, the Appeals Chamber observes that the Trial Chamber appears to have ultimately considered that Nambaje was part of the group of Tutsi women and girls abducted from Mugombwa Sector and killed at Gasenyi.⁶⁴⁵² Leaving apart whether the Trial Chamber erred in this regard,⁶⁴⁵³ the Appeals Chamber considers that, to the extent that the Trial Chamber found that Nambaje was part of the same group of women and girls abducted from their homes that Witness QAR was expected to testify about, Ndayambaje had the requisite notice and his contention to the contrary is rejected.

6452. See infra, Section IX.H.1(a).

6453. See infra, Section IX.H.1(a).

2827. With respect to Ndayambaje’s argument regarding the lack of notice of the form of responsibility, the Appeals Chamber notes that the Trial Chamber did not discuss in the Trial Judgement whether Ndayambaje had received sufficient notice that he could be held responsible forinstigating the killing of the abducted women and girls, concluding generally that he was put on notice that he was “present during the abduction and that the women and girls were subsequently killed.”⁶⁴⁵⁴ 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,⁶⁴⁵⁵ 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 instigating the killing of the abducted women and girls.

6454. Trial Judgement, para. 4654.

6455. See supra, fn. 6254.

2828. As discussed in relation to the notice of Ndayambaje’s responsibility in the Mugombwa Church massacre, the Appeals Chamber observes that the Indictment only generally indicates in its charging section that the relevant counts were pursued pursuant to Article 6(1) of the Statute and, in paragraph 6.37 of the Indictment, that Ndayambaje was alleged to have “ordered, supervised and participated in massacres of the Tutsi population” that were committed by others. In the absence of identification of any particular acts on the part of Ndayambaje that may characterise a responsibility for instigating in paragraph 6.37, the Appeals Chamber does not consider that the general reference to Article 6(1) of the Statute and the reference to participation in paragraph 6.37 put Ndayambaje on sufficient notice that he was charged with instigating the killings of the abducted Tutsi women and girls. 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 he instigated the massacres in which he was alleged to have participated in paragraph 6.37.

2829. However, the Appeals Chamber considers that it is clear from Witness QAR’s Summary and her 1995 and October 1997 statements that Ndayambaje was alleged to have ordered or prompted the killing, when he answered the questions of the abductors regarding the fate of the Tutsi women and girls at the Virgin Mary Statue.⁶⁴⁵⁶ The Appeals Chamber finds, therefore, that the failure of the Prosecution to specify the exact form of responsibility in the Indictment was cured since, when reading the Indictment in conjunction with Witness QAR’s summary and prior statements, Ndayambaje was put on notice that he was alleged to have instigated the killing of the Tutsi women and girls who were abducted and brought to the Virgin Mary Statue. 2830. Finally, the Appeals Chamber finds Ndayambaje’s general and undeveloped alternative argument that the Trial Chamber erred in convicting him as the Prosecution failed to plead his genocidal intent in the Indictment unmeritorious since, in Count 2, in which he is charged with genocide, the Prosecution specifically pleaded that Ndayambaje acted with genocidal intent.⁶⁴⁵⁷

6456. Witness QAR’s 1995 Statement, p. K0181455 (Registry pagination) (“[T]he women and girls who had been spared were massacred on the orders of NDAYAMBAJE [...]. He claimed that some of the refugees knew how to write and correspond with the Inkotanyi [...]. [T]he Bou[r]gmestre replied as follows: ‘Do as you please. Are they not the ones who are going to relate what happened when the Inkotanyi arrive?’”); Witness QAR’s October 1997 Statement, p. K0052277 (Registry pagination) (“When the Bourgmestre arrived, he said: ‘Were you not told that if you sweep the dirt towards your house, it heaps up and ends up chasing you out of your house? Then throw away the dirt.’”). The Appeals Chamber also notes that the Prosecution Pre-Trial Brief states that “[t]he massacres and the assaults thus perpetrated were the result of a strategy planned, adopted, instigated, and elaborated by political, civil and military authorities in the country both at the national and local levels.” See Prosecution Pre-Trial Brief, para. 28.

6457. Ndayambaje Indictment, pp. 40, 41.

2831. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber’s erroneous reliance on Witness QAF’s summary and statement did not invalidate its conclusion that Ndayambaje received clear, timely, and consistent information putting him on notice that, following a meeting at Muganza commune office in June 1994, an abduction of Tutsi women and girls took place in Mugombwa Sector by assailants from Saga, that he was present during the abduction, and that they were subsequently killed. The Appeals Chamber further considers that the subsequent information provided to Ndayambaje through Witnesses QAR’s summary and statements sufficiently informed him of the course of conduct on his part supporting the generally pleaded charge of instigating, thereby curing the defect in the Indictment as regards the form of responsibility.

2832. 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 Ndayambaje instigated the killings of the abductees at the Virgin Mary Statue. In particular, the Appeals Chamber observes that Ndayambaje cross-examined Witness QAR at length regarding the abduction of Tutsi women and girls at the Virgin Mary Statue.⁶⁴⁵⁸ Specifically, Ndayambaje asked questions to the witness about his presence at the Virgin Mary Statue and his behaviour during this event.⁶⁴⁵⁹ Moreover, Ndayambaje called several witnesses in order to challenge and contradict the Prosecution’s allegation that he was involved in the deaths of the abducted Tutsi women and girls.⁶⁴⁶⁰ The Appeals Chamber also notes that Ndayambaje challenged in his closing brief the evidence regarding Witness QAR and the allegation that he was involved in the killing of Tutsi women and girls who were abducted and brought to the Virgin Mary Statue.⁶⁴⁶¹

6458. Witness QAR, T. 21 November 2001 pp. 95-113.

6459. Witness QAR, T. 21 November 2001 pp. 99, 100, 104.

6460. Ndayambaje called, inter alia, Witnesses ANGES, BOZAN, JAMES, KWEPO, MATIC, MUZIK, SABINE, and Stan. See Trial Judgement paras. 4648, 4673-4706. See also Ndayambaje Pre-Defence Brief, Annex 3, items 31, 34, 37.

6461. See Ndayambaje Closing Brief, paras. 201, 781-798.

2833. Accordingly, the Appeals Chamber finds that Ndayambaje was provided with sufficient information detailing the factual basis on which he was convicted in relation to the killing of the abducted Tutsi women and girls from Mugombwa Sector to prepare a meaningful defence."

"3258. In the “Legal Findings” section of the Trial Judgement, the Trial Chamber found that

a group of Tutsi women and girls from Mugombwa secteur, Muganza commune, were abducted by assailants from Saga after Ndayambaje’s swearing-in ceremony of 22 June 1994 including one Nambaje who was abducted from a home. During the abduction, Ndayambaje came to the Statue of the Virgin Mary and made it clear that the abductors were free to do what they wanted with the girls, and the abducted women and girls were subsequently taken to a brick factory at Gasenyi where they were killed [...].⁷⁴⁷³

When further discussing Ndayambaje’s responsibility in relation to his utterances at the Virgin Mary Statue specifically, the Trial Chamber declared it proven that “Ndayambaje committed the actus reus of instigating the killing of the abducted Tutsi girls and one Nambaje”⁷⁴⁷⁴ and that he “knew he was assisting in the deaths of the abducted girls and Nambaje.”⁷⁴⁷⁵

7473. Trial Judgement, para. 5949 (emphasis added). See also ibid., para. 5953.

7474. Trial Judgement, para. 5957 (emphasis added).

7475. Trial Judgement, para. 5958 (emphasis added).

3259. In the view of the Appeals Chamber, the Trial Chamber’s findings show that it ultimately considered that Nambaje, about whom Witness FAU testified, was part of the group of Tutsi women and girls abducted from Mugombwa Sector by assailants from Saga and killed at Gasenyi following Ndayambaje’s utterances at the Virgin Mary Statue.

3260. However, as Ndayambaje points out and as the Trial Chamber correctly noted in other parts of the Trial Judgement,⁷⁴⁷⁶ Witness FAU testified that Nambaje was abducted from his home which was located in Baziro Sector, that the assailants were Casien Ngona, Nyambindi and Rutabana from Baziro Sector, and that Nambaje was taken to the home of a Tutsi named Kinyagiro where she was killed.⁷⁴⁷⁷ The abduction Witness FAU testified about did not concern women from Mugombwa Sector, was not led by assailants from Saga, did not involve a stop at the Virgin Mary Statue or Ndayambaje, and did not end with killings in a brick factory at Gasenyi.

7476. Trial Judgement, paras. 4668, 4730; Ndayambaje Appeal Brief, paras. 620, 647, 649.

7477. See Witness FAU, T. 9 March 2004 pp. 21, 22 (closed session).

3261. As acknowledged by the Prosecution,⁷⁴⁷⁸ it is apparent that Witnesses QAR and FAU testified about two different incidents of abductions involving different perpetrators and victims. In these circumstances, the Appeals Chamber finds that the Trial Chamber erred in considering that Nambaje was part of the group of victims abducted from Mugombwa Sector and killed at Gasenyi following Ndayambaje’s words at the Virgin Mary Statue and, consequently, in convicting Ndayambaje for instigating her killing through his words at the Virgin Mary Statue.⁷⁴⁷⁹

7478. Prosecution Response Brief, para. 2512. See also ibid., para. 2493; AT. 21 April 2015 p. 60.

7479. The Appeals Chamber recalls that the Trial Judgement reflects that Ndayambaje was ultimately not convicted in relation to the abductions discussed in this section on the basis of his utterances at his swearing-in ceremony. See supra, fns. 6351, 6415, 7443.

3262. As to the question whether Witness FAU could nonetheless be relied upon as corroborating aspects of Witness QAR’s evidence, the Appeals Chamber recalls that the Trial Chamber relied upon his evidence as corroborative of Witness QAR’s regarding: (i) the timing of the abduction of the group of Tutsi women and girls, namely in June 1994;⁷⁴⁸⁰ (ii) the fact that the women and girls were taken from their homes;⁷⁴⁸¹ and (iii) the fact that the group of abductees included adolescentgirls.⁷⁴⁸² Because Witness FAU testified to a different event, the Appeals Chamber finds that the Trial Chamber erred in relying on his evidence as corroborating these aspects of the different abduction about which Witness QAR testified.

7480. See Trial Judgement, paras. 4711, 4713, 4717.

7481. Trial Judgement, para. 4727.

7482. Trial Judgement, para. 4726.

3263. However, because the Trial Judgement does not reflect that Witness FAU’s evidence was material to the Trial Chamber’s finding that Witness QAR’s account of the abduction of Tutsi women and girls – which was in part corroborated by Witness QAF – was credible and proved beyond reasonable doubt Ndayambaje’s involvement in the abduction,⁷⁴⁸³ the Appeals Chamber finds that the Trial Chamber’s erroneous reliance on Witness FAU’s evidence as corroborative of Witness QAR’s evidence does not invalidate the Trial Chamber’s finding in this respect and has not occasioned a miscarriage of justice.

7483. Trial Judgement, para. 4746."

"3328. The Trial Chamber found that Kanyabashi’s Speech was not inflammatory and did not substantially contribute to the genocide in Butare Prefecture that followed the ceremony.7618 The Trial Chamber did not further discuss Kanyabashi’s alleged responsibility for instigating genocide in relation to his speech. The Appeals Chamber is not persuaded by the Prosecution’s contention that Kanyabashi’s conduct as found by the Trial Chamber satisfies the actus reus of instigating. As noted above, the Trial Chamber determined that Kambanda’s and Sindikubwabo’s Speeches were inflammatory and constituted a call to the public to identify and kill Tutsis and their accomplices, and that Kanyabashi gave a speech following those of Kambanda and Sindikubwabo, in which he supported their message and committed to execute their directives and instructions. The Appeals Chamber considers that Kanyabashi’s commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill Tutsis.⁷⁶¹⁹ In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi’s Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,⁷⁶²⁰ the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech.

7619. The Black's Law Dictionary defines the verb “prompt” as “to incite, especially to immediate action”. See Black’s Law Dictionary, 9th edition, 2009. In the Oxford Dictionary the verb “prompt” is defined as “to incite to action; to move or induce (a person, etc.) to or to do something”. See Oxford English Dictionary, 2015.

7620. See also infra, para. 3333.

3329. In light of the foregoing, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber erred in not finding that Kanyabashi’s Speech prompted the people in Butare Prefecture to kill Tutsis and that Kanyabashi was therefore liable for instigating genocide. The Appeals Chamber therefore dismisses this part of the Prosecution’s appeal."

M.P.1.1. Evidence of the suspect’s statement advocating the dismissal of members of a group from employment

M.P.1.2. Evidence of the suspect’s statement that only a few members of a group would e permitted to stay within a specific geographic area

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 359-360:

"3. Instigating

359. Many of the decisions of the ARK Crisis Staff for which the Accused bears responsibility requested that certain acts amounting to crimes be carried out. Most of the decisions did not take immediate effect and required implementation by, e.g., municipal organs. In this context, it is immaterial whether the physical perpetrators were subordinate to the instigator, or whether a number of other persons would necessarily have to be involved before the crime was actually committed, as long as it can be shown that there was a causal link between an act of instigation and the commission of a particular crime. Causality needs to be established between all acts of instigation and the acts committed by the physical perpetrators, even where the former are the public utterances of the Accused.

360. The Trial Chamber has found that decisions of the ARK Crisis Staff regarding the disarmament, dismissal and resettlement of non-Serbs were systematically implemented by the municipal Crisis Staffs, the local police, and the military. Moreover, it has been abundantly proved that the Accused made several inflammatory and discriminatory statements, inter alia, advocating the dismissal of non-Serbs from employment, and stating that only a few non-Serbs would be permitted to stay on the territory of the ARK. In light of the various positions of authority held by the Accused throughout the relevant time, these statements could only be understood by the physical perpetrators as a direct invitation and a prompting to commit crimes. Against this background, the Trial Chamber is satisfied that the Accused instigated the commission of some crimes charged in the Indictment."

B [Evidentiary comment:]

M.P.1.3. Evidence of the suspect’s statement inciting the attendees of a meeting to start the killing

M.P.1.4. Evidence of the suspect’s statement that he would return to see if other persons had started the killing

A. Legal source/authority and evidence:

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 375, 637 and 648-652:

"375. Prosecution Witness GEP testified that after Kamuhanda had finished speaking to a man, one of the passengers in the vehicle he had come in shot the man dead. On cross-examination, the Witness stated that people there said that the person shot was a Protestant Priest called "Bucundura", whom she did not know. On cross-examination, she also stated that Kamuhanda had a discussion with the pastor before they killed Bucundura. The Witness stated Kamuhanda said nothing after the man was killed, but turned around and, as their leader, told the others, "Start working", so as to incite them to kill.

[…]

637. The Chamber has found that at a meeting occurring sometime between 6 April 1994 and 10 April 1994, at the home of his cousins in Gikomero commune, the Accused addressed those present, incited them to start killing Tutsi, and distributed grenades, machetes and guns to them to use and to further distribute. He also told the participants that he would return to see if they had started the killings, or so that the killings could start.

[…]

o Individual Criminal Responsibility of the Accused (Article 6.1 of the Statute)

648. On the basis of its factual findings and legal findings above, the Chamber finds that the Accused participated in the killings in Gikomero Parish Compound in Gikomero commune by ordering Interahamwe, soldiers, and policemen to kill members of the Tutsi ethnic group, instigating other assailants to kill members of the Tutsi ethnic group and by aiding and abetting in the commission of the crime through the distribution of weapons and by leading the attackers to the Gikomero Parish Compound.

649. Judge Maqutu joins with the Majority to conclude that the Accused participated in the crime by ordering these killings, but his reasoning differs from that of the Majority. This reasoning is explained in his Separate and Concurring Opinion on the Verdict.

650. The Chamber finds that at the time of his participation in these killings, the Accused had the intent to destroy the Tutsi ethnic group in whole or in part.
d. Conclusion

651. In conclusion, the Chamber finds beyond a reasonable doubt that the Accused is individually criminally responsible for instigating, ordering, and aiding and abetting the killing of members of the Tutsi ethnic group in Gikomero Parish Compound, Gikomero commune, Kigali-Rural préfecture, pursuant to Article 6(1) of the Statute.

652. Accordingly, in relation to Count 2 of the Indictment, the Chamber finds the Accused GUILTY of GENOCIDE."

B. [Evidentiary comment:]

M.P.1.5. Evidence of the suspect’s statement encouraging a crowd to rape members of a group

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 475-479:

"6. Count 10: Rape

475. Count 10 charges:

By his acts in relation to the events described in paragraph 3.17 above, Laurent SEMANZA is responsible for the RAPE of Victim A and Victim B as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds, and has thereby committed CRIMES AGAINST HUMANITY stipulated in Article 3(g) of the Statute of the Tribunal as a crime, attributed to him by virtue of Articles 6(1) and 6(3), and punishable in reference to Articles 22 and 23 of the same Statute.

476. The Chamber has found, in relation to paragraph 3.17 of the Indictment, that the Accused, in the presence of commune and military authorities, addressed a crowd and asked them how their work of killing the Tutsis was progressing and then encouraged them to rape Tutsi women before killing them. Immediately thereafter, one of the men from the crowd had non-consensual sexual intercourse with Victim A, who was hiding in a nearby home. The Chamber has found that Victim B was killed by two other men from this crowd, but has had insufficient evidence to draw any conclusions about whether she had also been raped.

477. The Chamber finds beyond a reasonable doubt that Victim A was raped by one of the assailants who heard the Accused encouraging the crowd to rape Tutsi women. In light of the generalized instructions about raping and killing Tutsis, the ethnic group targeted by the widespread attack, and the fact that the assailant arrived at Victim A's hiding place with two others who then killed Victim B, the Chamber finds that this rape was part of the widespread attack against the civilian Tutsi population and that the assailant was so aware. The Chamber therefore finds that the principal perpetrator committed rape as a crime against humanity.

478. Having regard, inter alia, to the influence of the Accused and to the fact that the rape of Victim A occurred directly after the Accused instructed the group to rape, the Chamber finds that the Accused's encouragement constituted instigation because it was causally connected and substantially contributed to the actions of the principal perpetrator. The assailant's statement that he had been given permission to rape Victim A is evidence of a clear link between the Accused's statement and the crime. The Chamber also finds that the Accused made his statement intentionally with the awareness that he was influencing the perpetrator to commit the crime.

479. The Chamber finds beyond a reasonable doubt that the Accused instigated the rape of Victim A as a crime against humanity. Therefore, the Chamber finds the Accused guilty on Count 10."

B. [Evidentiary comment:]

M.P.2. Evidence of the suspect’s immediate response to the killing

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 269:

"269. Instigating means prompting another to commit an offence. Both acts and omissions may constitute instigating, which covers express as well as implied conduct. The nexus between instigation and perpetration requires proof. It is not necessary to demonstrate that the crime would not have been perpetrated without the accused’s involvement; it is sufficient to prove that the instigation was a factor clearly contributing to the conduct of other persons committing the crime in question. It has further to be demonstrated that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 375, 637, 648-652:

"375. Prosecution Witness GEP testified that after Kamuhanda had finished speaking to a man, one of the passengers in the vehicle he had come in shot the man dead. On cross-examination, the Witness stated that people there said that the person shot was a Protestant Priest called "Bucundura", whom she did not know. On cross-examination, she also stated that Kamuhanda had a discussion with the pastor before they killed Bucundura. The Witness stated Kamuhanda said nothing after the man was killed, but turned around and, as their leader, told the others, "Start working", so as to incite them to kill.

[…]

637. The Chamber has found that at a meeting occurring sometime between 6 April 1994 and 10 April 1994, at the home of his cousins in Gikomero commune, the Accused addressed those present, incited them to start killing Tutsi, and distributed grenades, machetes and guns to them to use and to further distribute. He also told the participants that he would return to see if they had started the killings, or so that the killings could start.

[…]

o Individual Criminal Responsibility of the Accused (Article 6.1 of the Statute)

648. On the basis of its factual findings and legal findings above, the Chamber finds that the Accused participated in the killings in Gikomero Parish Compound in Gikomero commune by ordering Interahamwe, soldiers, and policemen to kill members of the Tutsi ethnic group, instigating other assailants to kill members of the Tutsi ethnic group and by aiding and abetting in the commission of the crime through the distribution of weapons and by leading the attackers to the Gikomero Parish Compound.

649. Judge Maqutu joins with the Majority to conclude that the Accused participated in the crime by ordering these killings, but his reasoning differs from that of the Majority. This reasoning is explained in his Separate and Concurring Opinion on the Verdict.

650. The Chamber finds that at the time of his participation in these killings, the Accused had the intent to destroy the Tutsi ethnic group in whole or in part.
d. Conclusion

651. In conclusion, the Chamber finds beyond a reasonable doubt that the Accused is individually criminally responsible for instigating, ordering, and aiding and abetting the killing of members of the Tutsi ethnic group in Gikomero Parish Compound, Gikomero commune, Kigali-Rural préfecture, pursuant to Article 6(1) of the Statute.

652. Accordingly, in relation to Count 2 of the Indictment, the Chamber finds the Accused GUILTY of GENOCIDE."

M.P.3. Evidence of a commander creating via omissions an environment permissive of criminal behaviour by subordinates

ICC, The Prosecutor v. Charles Ble Goude , ICC-02/11-02/11, Decision on the confirmation of charges (PTC), 11 December 2014, para. 49:

"49. The Chamber acknowledges that the violence in Yopougon may have been triggered in part by anger and a wish for revenge after Laurent Gbagbo’s arrest on 11 April 2011. However, the evidence also indicates that the pro-Gbagbo youth, militia and mercenaries in Yopougon harboured aversion against those they considered enemies prior to Laurent Gbagbo’ s arrest and that inter-community tensions appear to have been fuelled within the youth and militia groups in Yopougon by Charles Ble Goude as well as by Laurent Gbagbo. Most importantly, the Chamber notes that throughout the relevant period, Charles Ble Goude engaged in a sustained effort to mobilise the youth, in particular in Yopougon, including for the use of violence against civilians, and that his speeches and public statements equally had an effect on the members of militias and mercenaries."

A. Legal source/authority and evidence:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 168:

"168. […] It has been held in relation to "instigating" that omissions amount to instigation in circumstances where a commander has created an environment permissive of criminal behaviour by subordinates. […]"

"289 - Blaskic Trial Judgement, para. 337."

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

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 269:

"269. Instigating means prompting another to commit an offence. Both acts and omissions may constitute instigating, which covers express as well as implied conduct. The nexus between instigation and perpetration requires proof. It is not necessary to demonstrate that the crime would not have been perpetrated without the accused’s involvement; it is sufficient to prove that the instigation was a factor clearly contributing to the conduct of other persons committing the crime in question. It has further to be demonstrated that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts."

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis (TC), 21 June 2004, para. 86:

"86. The jurisprudence of the Tribunal has established that a causal link between the act of instigation and the physical perpetration of a crime needs to be demonstrated as part of the actus reus. This link, however, need not be such as to show that the offence would not have been perpetrated without the participation of the instigator."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 593:

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 168:

"168. […] Instigating" means prompting another to commit an offence, which is actually committed.²⁸¹ It is sufficient to demonstrate that the instigation was "a clear contributing factor to the conduct of other person(s)."²⁸² It is not necessary to demonstrate that the crime would not have occurred without the accused’s involvement.²⁸³"

"281 - Akayesu Trial Judgement, para. 482; Blakic Trial Judgement, para. 280; Kordic Trial Judgement, para. 387.
282 - Kvocka Trial Judgement, para. 252, citing Kordic Trial Judgement, para. 387.
283 - Kvocka Trial Judgement, para. 252, citing Kordic Trial Judgement, para. 387."

M.P.4. Evidence of the closeness in time and space between the instigation and the crimes

A. Legal source/authority and evidence:

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 227-228:

"227. In light of the closeness in time and space between the instigation by the Accused on 17 April 1994 and the rapes committed against Witness TAQ and other women and girls, the mode of commission of which amounted to instigation, the Chamber finds that the rapes were a direct consequence of instigation. However, the Chamber is unpersuaded that there is a sufficient nexus between such instigation and the other rapes, the commission of which has been proved beyond a reasonable doubt. Although it is true that Prosecution Witness TAS testified that an attacker told her that he was acting in accordance with the Accused's instructions, the Chamber has not found any evidence that this part of her account is reliable.

228. With regard to paragraphs 20 and 37 of the Indictment, and in light of the evidence adduced in respect of paragraphs 39 and 40 of the same Indictment, the Chamber finds that the Prosecutor has established beyond a reasonable doubt that, from April to June 1994, in Rusumo commune, rapes and other acts of sexual violence were committed as part of a widespread and systematic attack against Tutsi civilians. The Chamber finds that the Accused knew or had reason to know that such rapes were being committed because he instigated the attack against Tutsi civilians."

M.P.4.1. Evidence of the suspect’s statement being immediately acted upon

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-A, Judgement (AC), 20 May 2005, paras. 289-290:

289. The Appellant asserts that he was wrongly convicted on Counts 10-12 and 14 and that the language in which he allegedly told the Interahamwe to commit the crimes detailed in those counts was not made out at trial or even set out in the Indictment.⁶²⁵ However, it is not necessary to charge and prove the "exact" language used by an accused. Here, paragraph 3.17 of the Indictment described in sufficient detail the contents of the statements of the Appellant ⁶²⁶ and there was evidence to make out this allegation. ⁶²⁷ The Appellant has not demonstrated that the Trial Chamber erred in this regard.

290. Finally, the Appellant -- purportedly drawing on the Akayesu Trial Judgement -- seems to suggest that, even if his statements were made out, they would still only establish that he incited the crimes rather than instigating them. ⁶²⁸ However, the Trial Chamber's holding that the Appellant instigated the rape of Victim A and the murder of Victim B was based on its finding that the Appellant's words had been immediately acted upon. ⁶²⁹ The Appellant has not shown that this finding was in error.

"625. Semanza Appeal Brief, para. 338.

626. Paragraph 3.17 of the Indictment states: "Laurent SEMANZA spoke to a small group of men in Gikoro Commune. He told them that they had killed Tutsi women but that they must also rape them before killing them. In response to Semanza's words the same men immediately went to where two Tutsi women, Victim A and Victim B, had taken refuge. One of the men raped Victim A and two men raped and murdered Victim B."

627. Trial Judgement, paras 253 (referring to T. 29 March 2001, pp. 9, 33-35) and 261.

628. Semanza Appeal Brief, para. 340.

629. Trial Judgement, para. 261."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 475-479, 492:

"6. Count 10: Rape

By his acts in relation to the events described in paragraph 3.17 above, Laurent SEMANZA is responsible for the RAPE of Victim A and Victim B as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds, and has thereby committed CRIMES AGAINST HUMANITY stipulated in Article 3(g) of the Statute of the Tribunal as a crime, attributed to him by virtue of Articles 6(1) and 6(3), and punishable in reference to Articles 22 and 23 of the same Statute.

476. The Chamber has found, in relation to paragraph 3.17 of the Indictment, that the Accused, in the presence of commune and military authorities, addressed a crowd and asked them how their work of killing the Tutsis was progressing and then encouraged them to rape Tutsi women before killing them. Immediately thereafter, one of the men from the crowd had non-consensual sexual intercourse with Victim A, who was hiding in a nearby home. The Chamber has found that Victim B was killed by two other men from this crowd, but has had insufficient evidence to draw any conclusions about whether she had also been raped.

477. The Chamber finds beyond a reasonable doubt that Victim A was raped by one of the assailants who heard the Accused encouraging the crowd to rape Tutsi women. In light of the generalized instructions about raping and killing Tutsis, the ethnic group targeted by the widespread attack, and the fact that the assailant arrived at Victim A's hiding place with two others who then killed Victim B, the Chamber finds that this rape was part of the widespread attack against the civilian Tutsi population and that the assailant was so aware. The Chamber therefore finds that the principal perpetrator committed rape as a crime against humanity.

478. Having regard, inter alia, to the influence of the Accused and to the fact that the rape of Victim A occurred directly after the Accused instructed the group to rape, the Chamber finds that the Accused's encouragement constituted instigation because it was causally connected and substantially contributed to the actions of the principal perpetrator. The assailant's statement that he had been given permission to rape Victim A is evidence of a clear link between the Accused's statement and the crime. The Chamber also finds that the Accused made his statement intentionally with the awareness that he was influencing the perpetrator to commit the crime.

 

ICTY

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 196:

"196. […] The Accused’s speech of 6 May did not extend the actions against Croatian civilians in other places. It was an electoral campaign speech, certainly anti-Croat in tenor, but one that was mainly directed against the actions of the Serbian authorities, judged to be inefficient and insufficiently protective of the Serbian refugees driven out of Croatia.¹⁵⁶ The majority fails to see in what way the Prosecution established that this speech and its hypothetical consequences could have strengthened or even prolonged a Serbian attack on a larger scale directed against the Croatian civilian population. In the view of the majority, the evidence heard points to acts driven by essentially domestic motives, private in nature, whose main focus was the acquisition of housing, which the Serbs did not have due to their refugee status, and by no means allows for a finding of a massive attack against the Croatian civilian population. In this sense, the majority notes several testimonies that speak of complaints lodged by a number of Croats who had been threatened or forcibly removed from their homes, and whose rights were later restituted by the local authorities.¹⁵⁷"

"156. See VS-061, T(E) 10036.

157. See for example: VS-061, T(E) 10023-10025; Aleksa Ejić, T(E) 10328."

B.[Evidentiary comment:]

M.P.5. Evidence of decisions of a high command being systematically implemented by subsidiary organs

M.P.5.1. Evidence of decisions of a high command regarding the disarmament, dismissal and resettlement of members of a group being systematically implemented by the municipal organs, the local police, and the military

M.P.6. Evidence of the suspect’s inflammatory and discriminatory statement together with the evidence of the various positions of authority held by the suspect

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 359-360:

"3. Instigating

359. Many of the decisions of the ARK Crisis Staff for which the Accused bears responsibility requested that certain acts amounting to crimes be carried out. Most of the decisions did not take immediate effect and required implementation by, e.g., municipal organs. In this context, it is immaterial whether the physical perpetrators were subordinate to the instigator, or whether a number of other persons would necessarily have to be involved before the crime was actually committed, as long as it can be shown that there was a causal link between an act of instigation and the commission of a particular crime. Causality needs to be established between all acts of instigation and the acts committed by the physical perpetrators, even where the former are the public utterances of the Accused.

360. The Trial Chamber has found that decisions of the ARK Crisis Staff regarding the disarmament, dismissal and resettlement of non-Serbs were systematically implemented by the municipal Crisis Staffs, the local police, and the military. Moreover, it has been abundantly proved that the Accused made several inflammatory and discriminatory statements, inter alia, advocating the dismissal of non-Serbs from employment, and stating that only a few non-Serbs would be permitted to stay on the territory of the ARK. In light of the various positions of authority held by the Accused throughout the relevant time, these statements could only be understood by the physical perpetrators as a direct invitation and a prompting to commit crimes. Against this background, the Trial Chamber is satisfied that the Accused instigated the commission of some crimes charged in the Indictment."

M.P.7. Evidence of the principal perpetrators’ presence during the suspect’s statement

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 492:

"492. The Chamber finds that the Accused’s instruction constituted instigation because his words were causally connected to and substantially contributed to the killing of Victim B. In reaching this conclusion the Chamber has noted, inter alia, that the principal perpetrators were present during the Accused’s statement and that they immediately attacked female Tutsi victims as specified by the Accused. The Chamber finds that the Accused made his statement with the awareness and intention that his words would influence the crowd to commit murder as a crime against humanity. The Chamber therefore finds that the Accused is criminally responsible for instigating the principal perpetrators to commit murder as a crime against humanity."

M.P.8. Evidence of the authority/influence of the suspect

M.P.8.1. Evidence of the assailant's statement that he had been given permission to rape

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 475-479:

"6. Count 10: Rape

By his acts in relation to the events described in paragraph 3.17 above, Laurent SEMANZA is responsible for the RAPE of Victim A and Victim B as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds, and has thereby committed CRIMES AGAINST HUMANITY stipulated in Article 3(g) of the Statute of the Tribunal as a crime, attributed to him by virtue of Articles 6(1) and 6(3), and punishable in reference to Articles 22 and 23 of the same Statute.

476. The Chamber has found, in relation to paragraph 3.17 of the Indictment, that the Accused, in the presence of commune and military authorities, addressed a crowd and asked them how their work of killing the Tutsis was progressing and then encouraged them to rape Tutsi women before killing them. Immediately thereafter, one of the men from the crowd had non-consensual sexual intercourse with Victim A, who was hiding in a nearby home. The Chamber has found that Victim B was killed by two other men from this crowd, but has had insufficient evidence to draw any conclusions about whether she had also been raped.

477. The Chamber finds beyond a reasonable doubt that Victim A was raped by one of the assailants who heard the Accused encouraging the crowd to rape Tutsi women. In light of the generalized instructions about raping and killing Tutsis, the ethnic group targeted by the widespread attack, and the fact that the assailant arrived at Victim A's hiding place with two others who then killed Victim B, the Chamber finds that this rape was part of the widespread attack against the civilian Tutsi population and that the assailant was so aware. The Chamber therefore finds that the principal perpetrator committed rape as a crime against humanity.

478. Having regard, inter alia, to the influence of the Accused and to the fact that the rape of Victim A occurred directly after the Accused instructed the group to rape, the Chamber finds that the Accused's encouragement constituted instigation because it was causally connected and substantially contributed to the actions of the principal perpetrator. The assailant's statement that he had been given permission to rape Victim A is evidence of a clear link between the Accused's statement and the crime. The Chamber also finds that the Accused made his statement intentionally with the awareness that he was influencing the perpetrator to commit the crime.

479. The Chamber finds beyond a reasonable doubt that the Accused instigated the rape of Victim A as a crime against humanity. Therefore, the Chamber finds the Accused guilty on Count 10."

B. [Evidentiary comment:]