M.1. Existence of a common plan or agreement between two or more persons.

M.1.1. A plurality of persons involved in the commission of a crime.

M.P.1. Not required: Evidence that the plurality of persons was organised in a military, political or administrative structure.

M.1.2. Common plan or agreement which include an element of criminality.

M.P.2. Not required: evidence of underlying purpose for entering into such an agreement.

M.P.3. Evidence of an agreemement.

M.P.4. Evidence of instructions

M.P.5. Evidence that a plurality of persons acted in unison to put into effect a joint criminal enterprise.

M.P.6. Evidence of a coordinated effort.

M.P.7. Evidence of a mutual exchange of information.

M.P.8. Evidence of a silent consent.

M.P.9. Physical and structural remoteness between alleged co-perpetrators may prevent evidence of an understanding.

M.1. Existence of a common plan or agreement between two or more persons.

M.1.1. A plurality of persons involved in the commission of a crime.

M.P.1. Not required: Evidence that the plurality of persons was organised in a military, political or administrative structure.

A. Legal source/authority and evidence:

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 227:

M.1.2. Common plan or agreement which include an element of criminality.

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 227:

Kai Ambos, "Article 25" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), para.8:

"The common plan or agreement forms the basis of a reciprocal or mutual attribution of the different contributions holding every co-perpetrator responsible for the whole crime".

This element is directly taken from the ICTY jurisprudence and its legal concept of participation in a "joint criminal enterprise". As the ICC Statute and the ICTY Statute differ on the subject of individual criminal responsibility, further discussion is needed to clarify the applicability of this element to cases that come before the ICC in the future.

M.P.2. Not required: evidence of underlying purpose for entering into such an agreement.

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004,, para. 342:

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 440:

M.P.3. Evidence of an agreemement.

A. Legal source/authority and evidence:

ICC, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 400:

"400. The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that a common plan to commit the crimes in Nakuru and Naivasha was agreed between Mr. Muthaura, Mr. Kenyatta and Maina Njenga. As shown above, this conclusion is established to the requisite threshold by the evidence demonstrating: (i) the contacts between Mr. Muthaura, Mr. Kenyatta and Maina Njenga through their respective intermediaries for the purposes of securing the services of the Mungiki for the PNU Coalition; (ii) the agreement reached between Mr. Muthaura, Mr. Kenyatta and Maina Njenga to the effect that Mungiki members would be used for the attack in Nakuru and Naivasha; (iii) the order given by Mr. Muthaura and Mr. Kenyatta to Mungiki leaders to commit the crimes in Nakuru and Naivasha; and (iv) the activities performed by Mr. Muthaura and Mr. Kenyatta at the execution stage of the plan to commit such crimes."

The Prosecutor v. Gatete, Case No. ICTR-00-61, Judgement (TC), 31 March 2011, para. 585, 587:

585. [T]he Chamber determined that, on the morning of 7 April 1994, a group of about 20 Interahamwe and Conseiller Jean Bizimungu had gathered in the Rwankuba sector office courtyard. Subsequently, Gatete arrived with Bourgmestre Jean de Dieu Mwange. Shortly after, a pickup vehicle carrying Interahamwe and a communal policeman also arrived. In total, about 40 Interahamwe had gathered in the sector office courtyard. Gatete issued instructions to the Interahamwe to start killing Tutsis, telling them to "work relentlessly". Before departing, Gatete issued further instructions to "sensitise" other persons to killings. The Chamber has found that the Interahamwe, who received instructions from Gatete, participated in the killing of Tutsis and that those present at the gathering marshalled further reinforcements for the attacks which intensified as the day progressed and ultimately also involved soldiers, police and Hutu civilians. The Chamber has determined that, at least, 25 to 30 Tutsis were killed, including 10 members of Witness BBR’s family. Tutsi Responsable Damascène Macali was also killed during an attack near his home.

587. Given these circumstances, the Chamber concludes that prior planning and coordination is the only reasonable explanation for the manner in which the gathering, and subsequent attacks on Tutsis, took place. The meeting of Interahamwe, and the attacks which ensued, necessarily demanded the involvement of a plurality of persons, which in this case, included Gatete, Bourgmestre Mwange, Conseiller Bizimungu, and Interahamwe. In the Chamber’s view, the only reasonable conclusion based on the evidence is that Gatete coordinated his actions with these individuals for the purposes of ensuring the gathering of assailants to carry out the attacks, as well as the presence of the relevant local officials, namely, the bourgmestre and conseiller, to provide official sanction for the subsequent killings. Thus, the Chamber concludes that a common criminal purpose existed to kill Tutsis in Rwankuba sector.

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 548:

548. There is sufficient evidence to establish substantial grounds to believe that Germain Katanga and Mathieu Ngudjolo Chui agreed on a common plan to "wipe out" Bogoro:

i. since their creation in late 2002, because of the traditional links between Lendu and Ngiti ethnic groups, the FNI and FRPI, fought together;

ii. in early 2003, there was an agreement or common plan between Germain Katanga, leader of the FRPI, and Mathieu Ngudjolo Chui, leader of the FNI, to attack the village of Bogoro by "wiping out" the village of its UPC military elements and of the Hema civilians;

iii. Germain Katanga, and Mathieu Ngudjolo Chui, through Commander Boba Boba and others under his command, met in Aveba in early 2003 and planned the attack against the village of Bogoro;

iv. after the meeting in Aveba, a written plan was handed over to Mathieu Ngudjolo Chui. The plan was distributed to commanders by both Germain Katanga and Mathieu Ngudjolo Chui;

v. a few days before the attack against the village of Bogoro, Germain Katanga and other commanders visited Mathieu Ngudjolo Chui at the Zumbe Camp. The day after Germain Katanga's visit to the Zumbe camp, Mathieu Ngudjolo Chui informed the soldiers that they were going to attack Bogoro; and

vi. the day before the attack, Germain Katanga, Mathieu Ngudjolo Chui and other commanders met at Cobra Matata's camp in Bavi and from there, on the eve of the attack against the Bogoro village, moved to implement the common plan as they took their respective positions in Medhu and Kagaba.

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 472, 477:

"472. On 29 April 1992, both at the meeting convened by Dr. Stakic at Prijedor JNA barracks and at the gathering in Cirkin Polje, the final agreement was made amongst those willing to participate, in particular the police and armed Serbs, that power would be taken over in Prijedor municipality during the night. This was the trigger and the first in a series of agreements necessary to achieve the common goal. No formal agreement was necessary and all participants were aware of where the decision to take over power would lead."

"477. The creation of an atmosphere of fear in Prijedor Municipality culminated in the agreement amongst members of the Crisis Staff to use armed force against civilians and to establish the Omarska, Keraterm and Trnopolje camps. The order to set up the Omarska camp on 31 May 1992, signed by Simo Drljaca, was issued "in accordance with the Decision of the Crisis Staff"¹⁰²⁹ presided over by Dr. Stakic. The Trial Chamber finds no reason to doubt Dr. Stakic’s own statement in a television interview that "[Omarska, Keraterm, and Trnopolje were] a necessity in the given moment" and his confirmation that these camps "were formed according to a decision of [his] civilian authorities in Prijedor".¹⁰³⁰"

"¹⁰²⁹ Exh. S107.
¹⁰³⁰.Exh. S187-1."

M.P.4. Evidence of instructions

A. Legal source/authority and evidence:

Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 303, 328, 358:

303. As demonstrated in greater detail under paragraphs 187-196 of the present decision, over the course of these meetings, Mr. Ruto, together with other key members of the organisation, agreed upon several aspects which were crucial for the development and implementation of the criminal plan. These aspects include:

(a) The appointment of commanders and divisional commanders responsible for the operations on the field;

(b) The production of maps marking out the areas most densely inhabited by communities perceived to be or actually siding with the PNU as well as the identification of houses and business premises owned by PNU supporters with a view toward targeting them. In this regard. Witness 8 stated that Mr. Ruto distributed maps which mark the locations where PNU supporters reside. Moreover, Witness 6 confirms that in the Kabongwa meeting in December 2007, two members of the organisation, including one divisional commander, were requested to provide an update on the identification of Kikuyu and Kisii houses in Kapsabet and Nandi Hills towns." This approach of identifying houses belonging to the PNU supporters to be targeted has also been confirmed by other witnesses such as Witness 5 and a non-ICC Witness;

(c) The purchase of weapons as well as material to produce crude weapons and their storage before the attack, which is clear from the findings made earlier by the Chamber;

(d) The transportation of the perpetrators to and from the target locations. According to Witness 8, Mr. Ruto expressed that two companies belonging to two members of the organisation would provide the means for transportation.'*^^ Regarding the implementation phase of the common plan, the same witness avers that he saw a tractor pulling a trailer carrying between 40 and 60 youths armed with arrows and machetes, material which was used to kill people. "^ In addition, the Chamber notes that Witness 4 gathered with more than 2000 physical perpetrators in the outskirts of Eldoret town before the attack and reports that one Kalenjin elder indicated that "there would be some vehicles to transport people"; and

(e) The establishment of a stipendiary scheme and a rewarding mechanism to motivate the perpetrators to kill and displace the largest number of persons belonging to the targeted communities as well as to destroy their properties."

This information is corroborated by a statement made by Witness 2 who said that Mr. Ruto promised that perpetrators would get "fifty thousand Kenyan shillings for killing a Kikuyu" as well as "a piece of land". Although Witness 8 states that "this money [...] promised was never given", he equally asserts that people felt motivated to kill because of the promised reward. Therefore, it is irrelevant if the money has actually been paid, since the pecuniary promise served its purpose of motivating the direct perpetrators to commit the crimes.

328. In particular, based on the evidence, and as explained in greater detail in paragraph 197 above, Mr. Ruto was in charge of appointing commanders and divisional commanders and assigning them to specific areas and locations respectively. Mr. Ruto also had full control to decide on where and how the weapons he distributed should be used. Moreover, immediately before and during the implementation phase of the plan, Mr. Ruto's control over the organisation can be demonstrated by the orders he gave to the physical perpetrators via the coordinators on the ground. Witness 1 reports that during a meeting on 28 December 2007, it was mentioned that the attendees were waiting for instructions from "above", meaning Mr. Ruto. Further, according to Witness 4, during the attack which took place on 31 December 2007 in Turbo town, Mr. Ruto had told one of his coordinators "to take charge of the attacks". Again, Witness 1 reports that during the Kapsabet demonstration which took place on 3 January 2008, Mr. Ruto gave instructions to one of the divisional commanders to burn the PNU supporters. These pieces of evidence reveal that Mr. Ruto was, in fact, in overall control of the organisation and that his orders were secured by almost automatic compliance.

358. In the view of the Chamber, this information should be read in conjunction with other statements allegedly made by Mr. Sang immediately before the eruption of violence. As reported by Witnesses 1, 2, 6 and 8, Mr. Sang broadcasted inciting statements. According to Witnesses 2 and 8, Mr. Sang said that "if Kibaki wins, we will carry out our work" and "we will give the instructions". Witness2 elaborates on the word "work" and explains that this term was used in the three months preceding the election instead of explicitly using to the word "kill". Witness 2 further clarified that "to carry out the work" meant to make sure that Kikuyus "have been evicted [...][and] have been killed".

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 470-471:

"470. The objective of consolidating Serbian control in Prijedor Municipality which had a majority Muslim population (variant B municipality) was first articulated in the Instructions issued by the Main Board of the Serbian Democratic Party of Bosnia and Herzegovina on 19 December 1991.¹⁰¹⁵ The Instructions provided a blueprint for the Serbian people in Bosnia and Herzegovina to "live in a single state".¹⁰¹⁶ [...]"

"¹⁰¹⁵ Exh. SK39.

¹⁰¹⁶ Exh. SK39, p.2."

"471.The common goal on the Prijedor level found its vibrant expression in Radovan Karadic’s six strategic goals of the Bosnian Serb leadership in Bosnia and Herzegovina which included as the first goal the separation of Serbs from "the other two national communities".¹⁰²⁰ Karadic remarked that the accomplishment of his goals "shall finally and definitely finish the job of the freedom struggle of the Serbian people".¹⁰²¹ By the time Karadic set out these goals, preparations were already underway for the fulfillment of the first goal in Prijedor Municipality."

¹⁰²⁰ Exh. S141, p. 13-15.

¹⁰²¹ Exh. S141."

A. Legal source/authority and evidence:

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 435:

"435. In order to establish individual criminal responsibility pursuant to a joint criminal enterprise, the Prosecution must prove, for all three categories the existence of a common criminal plan between two or more persons in which the accused was a participant.⁹³³ The existence of the agreement or understanding need not be express, but may be inferred from all the circumstances.⁹³⁴ The participation of two or more persons in the commission of a particular crime may itself establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that particular criminal act.^935"

"⁹³³ Tadić Appeal Judgement, para. 227.
⁹³⁴ Tadić Appeal Judgement, para. 227; Krnojelac Trial Judgement, para. 80.
⁹³⁵ Vasiljevic Trial Judgement, para. 66; Krnojelac Trial Judgement, para. 80."

Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 66:

Gerhard Werle, Principles of International Criminal Law (2005), para. 348:

"The key to joint commission is the "common plan, design or purpose". This must be aimed at committing one or more crimes against international law.¹⁷⁹ However, the plan need not be formed before the act is committed; it can also be spontaneous. Its presence may be deduced from the cooperation of several persons to carry out a criminal undertaking.¹⁸⁰"

"¹⁷⁹Prosecutor v. Tadić, ICTY (Appeals Chamber), judgment of 15 July 1999, para.188; Prosecutor v. Kupreskic et al., ICTY (Appeals Chamber), judgment of 14 January 2000, para. 772: Co-perpetration requires a plurality of persons, the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute and participation of the accused in the common design."

¹⁸⁰Prosecutor v. Tadić, ICTY (Appeals Chamber), judgment of 15 July 1999, para.227: "There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialize extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect as joint criminal enterprise."

M.P.5. Evidence that a plurality of persons acted in unison to put into effect a joint criminal enterprise.

A. Legal source/authority and evidence:

The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement (TC), 20 December 2012, para. 1315-1316:

1315. The Chamber further observes the significant quantity of evidence linking Ngirabatware with Bagango and with Simpunga. Indeed, Ngirabatware testified that he and Bagango had known each other since childhood, that they were acquainted with each other’s families, and that Bagango telephoned him as late as mid-June 1994 (3.2.3). Ngirabatware confirmed that he also knew Simpunga.

1316. The Chamber has no doubt that this evidence further bolsters the conclusion that Ngirabatware, Bagango and Simpunga had jointly taken steps to promote an anti-Tutsi message in Nyamyumba commune, and that Bagango played a central role in coordinating weapons distributions and activities at roadblocks.

Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, para. 120:

"120. […] Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable."

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 227(ii):

"227. (ii) There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise."

M.P.6. Evidence of a coordinated effort.

A. Legal source/authority and evidence:

ICC, The Prosecutor v. Laurent Gbagbo , ICC-02/11-01/11, Decision on the confirmation of charges (PTC), 12 June 2014, para. 231-232:

"231. The Chamber finds that Laurent Gbagbo, together with his inner circle, designed a common plan to retain power by all means, including through the use of force against civilians. The Chamber relies on evidence demonstrating:

(i) Laurent Gbagbo’s relations with a limited number of close associates who shared his objective of staying in power and coordinated with him the means to achieve this goal, including the use of force against civilians;

(ii) Laurent and Simone Gbagbo’s public statements indicating an intention to hold on to power at any cost, including by use of force against civilians;

(iii) the campaign activities aimed at mobilising supporters for the possible use of violence, which began well in advance of the violence at issue in the present case;

(iv) the mobilisation of the youth for violent acts;

(v) preparatory activities in anticipation of the use of violence, such as securing the allegiance of the FDS, acquisition of weapons, recruitment into the FDS, recruitment, training and supplying of loyal militias, and recruitment and financing of mercenaries;

(vi) the interaction between Laurent Gbagbo and members of his inner circle, and the forces under their control, illustrated by the evidence of meetings and instructions to units on the ground during the crisis; as well as

(vii) the steps undertaken by Laurent Gbagbo and his inner circle in reaction to the evolution of the crisis. Additional indicators supporting the existence of a common plan to maintain Laurent Gbagbo in power at any cost, including by the use of force against civilians, include the blockade of the Golf Hotel and the lack of genuine investigations into allegations of civilian casualties. Based on these considerations, the Chamber concludes that violence against civilians, while not in itself the ultimate goal of Laurent Gbagbo and his inner circle, was a criminal element inherent to the common plan to stay in power at any cost.

232. Further, the Chamber finds that Laurent Gbagbo and members of his inner circle contributed in a coordinated manner to the implementation of the common plan to retain presidential power at any cost, including by use of violence against civilians. The Chamber considers that Laurent Gbagbo contributed to the commission of the crimes charged within the four incidents through:

(i) his order that the march on the RTI building on 16 December 2010 be prevented;

(ii) his order of and control over the intervention of FANCI in Abobo, which deployed with its regular means, including heavy weaponry; and

(iii) his support of militia and youth groups, including by way of defining a purpose for them (namely to fight for him), encouraging and endorsing their actions, in particular in Yopougon, as well as providing them with training, weapons and financial means.

For its finding, the Chamber has also taken into account evidence which demonstrates regular meetings between Laurent Gbagbo and the high commanders of the FDS, and evidence of instructions given by Laurent Gbagbo and his inner circle to pro-Gbagbo forces. The Chamber has also relied on the evidence regarding the activities of Laurent Gbagbo and his inner circle that were undertaken in anticipation of the use of violence, such as securing allegiance of the FDS, recruitment into the FDS, recruitment and financing of both militias and mercenaries, and the acquisition of weapons. The Chamber is of the view that without the contribution of Laurent Gbagbo, the crimes would not have been committed or would have been committed in a significantly different way."

Prosecutor v. Casimir Bizimungu, Justin Mugenzi, Jér?me-Clement Bicamumpaka, Prosper Mugiraneza, Case No. ICTR 99-50, Judgement (TC), 30 September 2011, para. 1943-1945:

1941. The temporal and thematic consistency of these acts demonstrate that they were highly coordinated and concerted actions, sharing the common criminal purpose of killing Tutsis in Butare. Habyalimana’s removal and the President’s subsequent speech reflect that certain members of the Interim Government, including Mugenzi and Mugiraneza, Kambanda, and Sindikubwabo, decided to weaken resistance to genocide in Butare and then spark the killings of Rwandan Tutsis there.

1943. The fact that these four were not continually in each other’s presence, as well as the absence of direct evidence concerning pre-planning, is not surprising in this context and does not raise doubt. The immediate temporal proximity of these events and their thematic consistency necessarily reflect coordination and agreement to use the administrative authority of the Interim Government and their national prominence to implement policies and directives aimed at killing Tutsis in Butare.

The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement (TC), 20 December 2012, para. 1304-1305:

1304. Later that same day, Ngirabatware returned to the Bruxelles roadblock with two vehicles transporting weapons. Many Interahamwe were present, including Juma. Ngirabatware chastised the Interahamwe there for only pretending to work. He said that he brought weapons because he did not want to see any Tutsis alive in Busheke cellule, and he charged that Safari was communicating with "Inyenzi". Firearms and grenades were offloaded, and Ngirabatware then drove to the Gitsimbi/Cotagirwa roadblock, where he again summoned Bagango. Bagango came immediately, and weapons were offloaded. Ngirabatware explained that he brought weapons because he did not want to see any Tutsis in Nyamyumba commune and ordered Bagango to work well. Ngirabatware further told Bagango that Safari needed to be located and killed. At least some of the weapons distributed this day were used by the Interahamwe during the attacks and killings of Tutsis in Nyamyumba commune. After this distribution, Safari was attacked and seriously injured by various Interahamwe, including Juma (3.10.4).

1305. In the Chamber’s view, the only reasonable inference from the evidence is that a common criminal purpose existed by 7 April 1994 between Ngirabatware, Bagango and Simpunga. In particular, the Chamber observes that Ngirabatware stated on this date that he brought weapons because he did not want to see any Tutsis alive in the area, after which he provided the weapons to Bagango, who ensured their further distribution. This occurred on two separate occasions on 7 April 1994. Simpunga also received weapons and effectuated their distribution to the roadblocks in the Bruxelles area. Given these explicit statements by Ngirabatware, as well as the coordination demonstrated by these actions, the Chamber has no doubt that both Ngirabatware, Bagango and Simpunga possessed genocidal intent and that they shared the common purpose of destroying, in whole or in part, the Tutsi ethnic group as such, and exterminating the Tutsi civilian population in Nyamyumba commune.

Prosecutor v. v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-T, Judgement (TC), 31 March 2011, para. 586-587, 597-598, 604-605:

"586. The Chamber considers that the gathering of Interahamwe and Conseiller Bizimungu at the sector office, the subsequent arrival of Gatete with Bourgmestre Mwange, and the timely arrival of further Interahamwe, as well as the subsequent attacks on Tutsis in Rwankuba sector, which intensified as the day progressed and involved a range of assailants, could not have been achieved without considerable organisation. The presence of local authorities such as Conseiller Bizimungu and Bourgmestre Mwange, as well as a prominent figure such as Gatete, who was respected and well-known in Murambi commune by virtue of his former position as bourgmestre there and his post at the time in a national ministry, provided direction and encouragement to the Interahamwe prior to the attacks.

587. Given these circumstances, the Chamber concludes that prior planning and coordination is the only reasonable explanation for the manner in which the gathering, and subsequent attacks on Tutsis, took place. The meeting of Interahamwe, and the attacks which ensued, necessarily demanded the involvement of a plurality of persons, which in this case, included Gatete, Bourgmestre Mwange, Conseiller Bizimungu, and Interahamwe. In the Chamber’s view, the only reasonable conclusion based on the evidence is that Gatete coordinated his actions with these individuals for the purposes of ensuring the gathering of assailants to carry out the attacks, as well as the presence of the relevant local officials, namely, the bourgmestre and conseiller, to provide official sanction for the subsequent killings. Thus, the Chamber concludes that a common criminal purpose existed to kill Tutsis in Rwankuba sector."

"597. In the Chamber’s view, the large-scale massacre at Kiziguro parish can only be described as a highly organised operation. It involved civilian militia and Interahamwe using a range of traditional weapons, as well as guns. Soldiers were brought in to facilitate the killings. Local authorities and prominent personalities, such as Gatete, Conseiller Kamali, and Interahamwe leader Nkundabazungu, were present to provide direction and encouragement to the killers. The operation was conducted over the course of the day, starting in the morning and finishing in the late afternoon or early evening.

598. Given the above circumstances, the Chamber concludes that prior planning and coordination is the only reasonable explanation for the manner in which the large-scale attack was conducted. The scale and efficiency of the killings necessarily demanded the involvement of a plurality of persons, which in this instance, involved Gatete, Conseiller Kamali, and Interahamwe leader Nkundabazungu, as well as various categories of assailants, in particular, military personnel, Interahamwe, and civilian militia. The only reasonable conclusion to be drawn from the evidence is that Gatete coordinated his actions with these individuals before the attacks, and that a common criminal purpose among the participants existed to kill Tutsis at Kiziguro parish. Moreover, elsewhere the Chamber has found that these participants entered into an agreement for the purposes of killing Tutsis at Kiziguro parish (III.4.3.ii). Given Gatete’s prominent role in the massacre, as well as his express orders, the only reasonable conclusion is that he was also among those who devised a plan to execute the aforementioned agreement."

"604. As with the killings at Kiziguro parish, the Chamber considers that the Mukarange parish massacre also required a high level of organisation, involving gendarmes, reserve soldiers, Interahamwe and civilian militia using grenades, guns, and traditional weapons. Gatete and officials including Bourgmestre Senkware, Conseiller Kamali, Lieutenant Twahira and Ngabonzima were present to provide encouragement and direction to the killers. Notably, guns and grenades, brought by these officials, were a decisive factor in the success of the assault. Indeed, the Chamber recalls Witness AWF’s evidence that the Tutsi refugees at the parish had managed to repel an earlier attack, but were overcome by the arrival of further weapons.737 The operation was conducted over several hours, and resulted in the killing of hundreds and possibly thousands of Tutsis.

605. Under the circumstances, the Chamber finds that prior planning and coordination is the only reasonable explanation for the manner in which the perpetrators conducted this large-scale assault. The scale and efficiency of the killings necessarily demanded the involvement of a plurality of persons, which in this case included Gatete, Bourgmestre Senkware, Conseiller Gashumba, Lieutenant Twahira, Ngabonzima, as well as various categories of assailants, in particular, gendarmes, reserve soldiers, Interahamwe, and civilian militia.738 The only reasonable conclusion to be drawn from the evidence is that Gatete coordinated his actions with these individuals before the attacks and that a common criminal purpose existed among the participants to kill Tutsis at Mukarange parish. Indeed, elsewhere, the Chamber has found that these individuals also entered into an agreement to kill Tutsis at Mukarange parish (III.4.3.iii). The only reasonable conclusion based on the evidence is that, not only was there an agreement, but that there was also a plan to kill Tutsis at the parish. The Chamber further concludes that, given Gatete’s prominent role in the operation, he was among those who formulated this plan."

Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 673-675:

"673. The Chamber has determined that the initial attack on the Mujawayezu home, involving Interahamwe and armed civilians, occurred between 6.30 and 7.00 p.m. on 23 April 1994. The residents of the home, with the assistance of their neighbours, succeeded in fending off Interahamwe and armed civilians. Approximately 30 minutes later, Hategekimana arrived on foot at Mujawayezu’s residence, accompanied by four armed Ngoma Camp soldiers and the same Interahamwe and armed civilians who had been repelled in the first attack. Hategekimana and Conseiller Jacques Habimana demanded to see the identity cards of the residents. When searching the premises, the Interahamwe and Ngoma Camp soldiers found Salomé Mujawayezu, Alice Mukarwesa and Jacqueline Mukaburasa, whom they forced out of the house. All three women, who bore identity cards indicating their Tutsi ethnicity, were killed on the road immediately by a plurality of assailants. Among the Interahamwe and armed civilians who were involved in the attack and in the murders were Gatera, Célestin Maniragena, Jean-Marie Rugerinyange, Michel Murigande, Zairois as well as ?douard and Jacques Habimana.

Criminal Responsibility: Joint Criminal Enterprise

674. In the Chamber’s view, the Commander and the Conseiller acted with a common criminal purpose in coordinating a second attack by soldiers, Interahamwe and armed civilians, and in identifying the three Tutsi women to be killed. Hategekimana returned with the same four soldiers at approximately 11.00 p.m. that night to demand once again the residents’ identity cards and to verify their ethnicity. He ordered the residents outside to the road, which was strewn with the bodies of Tutsis. Close to their dead bodies were the victim’s identity cards, left by the assailants.

675. In the Chamber’s view, the attack on Mujawayezu’s home can only be described as a coordinated operation involving Hategekimana and two categories of assailants. On the one hand, there were Interahamwe and civilians, armed with traditional weapons; and, on the other hand, there were Ngoma Camp soldiers carrying firearms."

Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, para. 120:

"120. There is no dispute that the Appellant sought certain information from Witness A in the events relevant to this case. There is also no dispute that the various physical attacks in the Large Room and in the Pantry were not committed by the Appellant, but by Accused B. According to the Trial Chamber's factual findings,¹⁶⁶ the Appellant was present both in the Large Room and the Pantry interrogating Witness A while the offences charged in the Amended Indictment took place. The Appeals Chamber agrees with the Prosecutor's submission that the events in this case should not be artificially divided between the Large Room and the Pantry, as the process was a continuum and should be assessed in its entirety. Once the abuses started and continued successively in two rooms, the interrogation did not cease. There was no need for evidence proving the existence of a prior agreement between the Appellant and Accused B to divide the interrogation into the questioning by the Appellant and physical abuse by Accused B. The way the events in this case developed precludes any reasonable doubt that the Appellant and Accused B knew what they were doing to Witness A and for what purpose they were treating her in that manner; that they had a common purpose may be readily inferred from all the circumstances, including (1) the interrogation of Witness A by the Appellant in both the Large Room while she was in a state of nudity, and the Pantry where she was sexually assaulted in the Appellant's presence; and (2) the acts of sexual assault committed by Accused B on Witness A in both rooms, as charged in the Amended Indictment. Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable."

"¹⁶⁶ Judgement, paras. 124-130."

Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 781-782:

"781. The accused, together with his brother Mirjan, in a gross and blatant manner denied his Muslim fellow citizens their fundamental rights to life, freedom of movement and free enjoyment of their family life and property, all against the background of numerous killings, woundings etc. committed by the HVO and the Military Police. His actions and their consequences are of such a heinous nature that there can be no dispute that they match in gravity the other offences commonly included under Article 5 of the Statute. The civilian character of the victims cannot seriously be called into question."

"782. The accused acted as a co-perpetrator, together with his brother Mirjan Kupreskic, within the meaning of Article 7(1) of the Statute, because he adhered to a common plan for the execution of the cleansing campaign in the village, which by necessity was a highly coordinated effort and required full prior knowledge of the intended activities and subordination to a common plan of action."

M.P.7. Evidence of a mutual exchange of information.

A. Legal source/authority and evidence:

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 489:

"489. Dr. Stakic spent considerable time with Drljaca and Arsic socially. As Slavko Budimir testified: "I did say in my previous testimony that Mr. Drljaca and Mr. Stakic and Mr. Arsic often spent time together. I didn’t socialise with them, but I knew that the three of them did see each other socially."¹⁰⁵² The Trial Chamber is convinced that they would have discussed the development of their common goals on such occasions. Thus, based on this mutual exchange of information one can infer that there was an informal means of co-operation."

"¹⁰⁵² Slavko Budimir, T. 13005."

M.P.8. Evidence of a silent consent.

A. Legal source/authority and evidence:

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 440:

M.P.9. Physical and structural remoteness between alleged co-perpetrators may prevent evidence of an understanding.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, ICTY, paras. 347, 350-352, 354-355:

"347. What remains is an alleged JCE between the Accused and members of the army and Serb paramilitary forces ("Relevant Physical Perpetrators"). The Trial Chamber in this context emphasises that for the purposes of establishing individual criminal responsibility pursuant to the theory of JCE it is not sufficient to prove an understanding or an agreement to commit a crime between the Accused and a person in charge or in control of a military or paramilitary unit committing a crime. The Accused can only be held criminally responsible under the mode of liability of JCE if the Prosecution establishes beyond reasonable doubt that he had an understanding or entered into an agreement with the Relevant Physical Perpetrators to commit the particular crime eventually perpetrated or if the crime perpetrated by the Relevant Physical Perpetrators is a natural and foreseeable consequence of the crime agreed upon by the Accused and the Relevant Physical Perpetrators.⁸⁸⁵"

"⁸⁸⁵Upon request of the Trial Chamber to the parties to address this legal question, both the Prosecution and the Defence agreed with the present conclusion, Prosecution Final Trial Brief, Appendix A, para . 2; Defence Final Trial Brief, pp. 117-118."

"350. During the following months and throughout the period relevant to the Indictment, a large number of individuals, including the Accused and many of the Relevant Physical Perpetrators, espoused the Strategic Plan and acted towards its implementation. The Trial Chamber is satisfied that all individuals espousing the Strategic Plan had the requisite mens rea for at least the crimes charged in Count 8 (deportation ) and Count 9 (forcible transfer), i.e., they intended to wilfully participate in expulsions or other coercive conduct to forcibly deport one or more person to another State without grounds permitted under international law (deportation) and to force persons to leave their territory without ground permitted under international law (forcible transfer).⁸⁸⁶"

"351. However, the Trial Chamber is of the view that the mere espousal of the Strategic Plan by the Accused on the one hand and many of the Relevant Physical Perpetrators on the other hand is not equivalent to an arrangement between them to commit a concrete crime. Indeed, the Accused and the Relevant Physical Perpetrators could espouse the Strategic Plan and form a criminal intent to commit crimes with the aim of implementing the Strategic Plan independently from each other and without having an understanding or entering into any agreement between them to commit a crime."

"352. Moreover, the fact that the acts and conduct of an accused facilitated or contributed to the commission of a crime by another person and/or assisted in the formation of that person’s criminal intent is not sufficient to establish beyond reasonable doubt that there was an understanding or an agreement between the two to commit that particular crime. An agreement between two persons to commit a crime requires a mutual understanding or arrangement with each other to commit a crime."

"⁸⁸⁶ The Trial Chamber comes to this conclusion considering the evidence as a whole and particularly the evidence discussed in the following Chapters: IV., "General Overview"; VI., "The Regional Level of Authority"; C.1., supra, "The Accused espousal of the Strategic Plan"; IX ., "Charges and Findings". This evidence establishes a pattern of criminal conduct which leads to these inferences."

"354. The Trial Chamber is satisfied that the acts and conduct of the Accused, in particular his public speeches and the decisions of the ARK Crisis Staff, which can be attributed to the Accused, were aimed at the implementation of the Strategic Plan and facilitated the commission of crimes by the Relevant Physical Perpetrators. However, given the physical and structural remoteness between the Accused and the Relevant Physical Perpetrators and the fact that the Relevant Physical Perpetrators in most cases have not even been personally identified, the Trial Chamber is not satisfied that the only reasonable conclusion that may be drawn from the Accused’s and the Relevant Physical Perpetrators’ respective actions aimed towards the implementation of the Common Plan is that the Accused entered into an agreement with the Relevant Physical Perpetrators to commit a crime. […]"

"355. The Trial Chamber is of the view that JCE is not an appropriate mode of liability to describe the individual criminal responsibility of the Accused, given the extraordinarily broad nature of this case, where the Prosecution seeks to include within a JCE a person as structurally remote from the commission of the crimes charged in the Indictment as the Accused.⁸⁸⁸"

"⁸⁸⁸ The Trial Chamber refers to its previous finding that the Accused was both physically remote from the Physical Perpetrators and the latter were not subject to the structure over which the Accused exercised de facto authority."

B . Evidentiary comment:

In Brdjanin, the ICTY court decided that even if alleged co-perpetrators share the same common purpose, evidence of an arrangement between them to commit a concrete crime still need to be provided. There must be evidence of a mutual understanding to commit the crime jointly.

However in Kristic the tribunal found the Accused to be a perpetrator although he "did not conceive the plan to kill the men, nor did he kill them personally. However, he fulfilled a key co-ordinating role in the implementation of the killing campaign" (Kristic Trial judgment, para. 644).