Table of contents:
M.2.1. Co-ordination and division of essential tasks among the co-perpetrators; AND
M.P.11. Evidence of a division of tasks between co-perpetrators.
M.P.12. Evidence of interdependency.
M.P.13. Evidence of cooperation.
M.P.13.2. Evidence of the perpetrator providing persons to conduct the killings.
M.P.14. Evidence that the perpetrator possesses skills or authority that the co-perpetrator lacks.
M.2.2. Essential contribution by co-perpetrators.
M.P.17. Evidence of the perpetrators personal fulfilment of one integral part of a crime.
M.P.17.1. Evidence of interrogating a victim while torture is being inflicted.
M.P.18. Evidence that the perpetrator made a contribution to the commission of a crime.
M.P.18.1. Evidence of a contribution at the planning stage of the crime.
M.P.18.4. Evidence of failing to report or complain of a criminal activity.
M.P.19. Not sufficient: evidence of mere membership in a criminal enterprise.
M.P.20. Not required: evidence of physical presence when the crime is committed.
Element:
M.2.1. Co-ordination and division of essential tasks among the co-perpetrators; AND
A. Evidentiary comment:
According to Albin Eser, the ICTY jurisprudence has adopted a wide notion of co-perpetration, accepting "[t]he mutual attribution of contributions made in a functional division of labour for the accomplishment of the crime, not only the person who physically kills the victim, but also the organizer of the plan and the provider of means can be held liable as co-perpetrators. [ ] However, the softening of "committing" must be counterbalanced by stronger requirements for the "jointly" committing, because otherwise co-perpetration is no longer distinguishable from mere instigation or aiding and abetting". (Albin Eser, "Individual Criminal Responsibility" in Antonio Cassese et al., eds., The Rome Statute of the International Criminal Court: A Commentary (2002), p. 790.)
Since the common plan "need not be previously arranged but may materialise extemporaneously" (Brdjanin Trial judgment, para. 262), the division of the criminal tasks does not have to be pre-planned.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, ICTR, para. 390:
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 210:
"210. [ ] In his opening statement the Prosecutor [of the United States military court in Kurt Goebell et al. (also called the Borkum Island case)] developed the doctrine of common design. He stated the following:
"262 Ibid., p. 1186 (emphasis added). See also p. 1187."
M.P.11. Evidence of a division of tasks between co-perpetrators.
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, para. 120:
"120. [ ]. 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."
M.P.12. Evidence of interdependency.
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. 317, 322-324, 326-328, 330:
317. In particular, the Chamber finds substantial grounds to believe that Mr. Ruto exercised his control over the organisation in a manner that assured that his orders were carried out by almost automatic compliance by way of at least a two-fold strategy: (1) a payment mechanism; and (2) a punishment mechanism.
322. Moreover, money provided by Mr. Ruto was also distributed through his coordinators. According to Witness 2, Mr. Ruto provided one of his coordinators with a sum of money to pass on to another coordinator on the ground for the purpose of securing food and transportation for the physical perpetrators. With regard to the issues of food and transportation, the Chamber recalls that Witness 5 provides evidence that, during the commission of the crimes, perpetrators were provided with food, drinks and transportation.The issue of regular payment is also confirmed by Witness 4 who said that he received a message from Mr. Ruto via one of the coordinators encouraging them to fight for their community and that the coordinator had a "bundle of notes", meaning money to distribute to the physical perpetrators, which came directly from Mr. Ruto.
323. With respect to the rewarding practice. Witness 2 states that Mr. Ruto established a reward practice for those who participated in the killing of Kikuyus. According to the witness, "to kill a Kikuyu was rewarded with 50000 shillings"; these perpetrators would also "acquire a piece of land".
324. The Chamber also finds, on the basis of the evidence, that in addition to the reward practice, Mr. Ruto created a punishment mechanism in situations of non- compliance. Witness 2 stated that "during the war, people were forced to fight [...]. Anyone who did not want to participate was considered a traitor and was to be killed". When receiving money from Mr. Ruto at the close of the 14 December 2007 meeting, the same witness confirms that "there was no way to refuse the money". Witness 2 stresses that "[i]f [he] had rejected the money, it could have been seen suspicious and [he would have] been seen as a spy [...]''.
326. Furthermore, Witness 2 reports an alternative method of sanctioning those who did not comply and did not join the violence against the PNU supporters. According to the said witness, when the violence started on 30 December 2007, those who refused to join were punished by being obligated to "donate something to help feed [...] the youths participating in the looting". Additionally, Witness 4 reports that at least one person was spared from beatings by giving a bull as appeasement.
327. The Chamber finds, moreover, that the twofold mechanism established was strengthened by an additional element, namely Mr. Ruto's position within the organisation and the dominant role he played during the preparatory and implementation phases of the plan.
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.
330 (...) The evidence available before the Chamber proves this leadership aspect at least in practice. Even if Mr. Ruto was not formally given the title of a leader of the Kalenjin community, according to several witness statements he was defacto their leader and to this extent he had control over members of this community.
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 484, 490:
M.P.13. Evidence of cooperation.
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 478-479, 481- 484, 486, 488-489:
"478. Slobodan Kuruzovic, who was deeply involved in the immediate preparations for the takeover on 30 April 1992, confirmed that it was carried out with very closely coordinated co-operation between the Serb civilian authorities, the military, the TO and the police.1031"
"1031See supra Section I. D. 1."
"479. Throughout the period immediately after the takeover, Dr. Stakic, in co-operation with the Chief of Police, Simo Drljaca, and the most senior military figure in Prijedor, Colonel Vladimir Arsic, worked to strengthen and unify the military forces under Serb control.1032 The response to the incidents at Hambarine and Kozarac in late May 1992 heralded the first in a series of measures taken by the Crisis Staff, in cooperation with the military and the police, to rid the municipality of non-Serbs."
"1032 Exh. S28 and Exh. S60."
"481. Although the influence of Dr. Stakic over the military was strongly contested by the Defence, the Trial Chamber sees close co-operation between Dr. Stakic and the military. For example, on 5 May 1992 the National Defence Council of the Municipal Assembly of Prijedor presided over by Dr. Stakic, adopted conclusions in relation to a general mobilisation and the surrender of illegal weapons.1037
"1037 Exh. S28."
"482. Through his positions as President of both the Crisis Staff and the National Defence Council, Dr. Stakic facilitated coordination by the police and military with each other and with the civilian authorities."
"483. A document from the Cirkin Polje Logistics Base dated 17 June 1992 and entitled "Report on Mobilised Motor Vehicles in Cirkin Polje Logistics Base" is instructive. The report lists vehicles mobilised in the Logistical Support Staff pursuant, inter alia, to "the decision of the Crisis Staff of the Serbian Municipality of Prijedor."1043 The report further states that certain of the vehicles listed are being used by the Cirkin Polje Logistics Base for the following tasks: "the distribution of food for the police in the centre and in Prijedor II, army units in Prijedor II, [ ], Trnopolje, Keraterm". The report indicates additional involvement of the Crisis Staff:
"1043 Exh. S433.
1044 Exh. S433 (emphasis added)."
"484.There is one additional passage in the document which amply illustrates the extent of the co-operation and interdependency between the Crisis Staff presided over by Dr. Stakic and the army and police in relation to the ongoing police and army operations in the municipality and the camps. It refers to a meeting between members of the Crisis Staff and the army attended by representatives from the Cirkin Polje Logistics Base after which the latter takes steps to provide "full material support to members of the Serbian army units and police officers in the municipality area" and to provide "food supplies to the prisons in Keraterm and Omarska."
"486. Other Crisis Staff enactments demonstrate that the Crisis Staff, headed by Dr. Stakic, cooperated in providing logistical support (e.g. fuel and technical equipment) to the army and police. For example, an order of the Crisis Staff dated 6 June 1992 states that the army is to be supplied with oil at the Zarko Zgonjanin barracks.1048[...]"
"1048 Exh. S69."
"488. There was coordinated co-operation between the Crisis Staff, later the War Presidency, and members of the police and army in operating the camps. The Crisis Staff participated through its oversight of security in the camps, took decisions on the continuing detention of Prijedor citizens, provided transport (and the necessary fuel) for the transfer of prisoners between the various camps and from the camps to territory not controlled by Serbs, and coordinated the provision of food for detainees."
"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 didnt 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.13.2. Evidence of the perpetrator providing persons to conduct the killings.
The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyattta and Mohammed Hussein Ali, Case No. ICC-01/09-02/11, Decision of confirmation of charges (PTC), 23 January 2012, para. 334-36, 342:
334. Witness OTP-11 refers to the occasion as an "urgent" meeting in which Mr. Kenyatta said that he had the capability of organizing his people and mobilizing them for any eventuality. According to the witness, during this meeting, Mr. Kenyatta also gave some MPs and Mungiki coordinators 3.3 million KSh each. In particular, the witness states that *** was among the recipients of money to coordinate the Mungiki attack in Naivasha, as well as that the money distributed at this meeting was later spent in part to buy the guns that were used in the attack in Nakuru.
335. Witness OTP-12 corroborates the account provided by OTP-11, stating that there was a meeting at State House, where the logistics of the attack in Naivasha were planned. The witness further indicates that the provision of 3.3 million KSh by Mr. Kenyatta to local politicians to mobilize the people from the ground occurred during the meeting at State House.
336. Finally, the occurrence and the purpose of the meeting as well as Mr. Kenyatta's presence therein are corroborated by Witness OTP-6 who states that a second meeting with Mungiki members occurred at State House during the post- election violence in which logistics of the retaliatory attacks and financing of the Mungiki's activities for such purpose were discussed. The witness also alleges that a source close to the Mungiki informed him that Mr. Kenyatta was in attendance of this meeting.
342. The occurrence of this meeting is established, to the requisite threshold, by the testimony of Witness OTP-4, who was present therein as a Mungiki representative and who provides a detailed account thereof. In particular. Witness OTP-4 states that the meeting commenced at around 9 a.m. with about 12 people present. The witness specifically mentions the presence of Mr. Muthaura, Mr. Kenyatta and George Saitoti on the side of the PNU Coalition and ***, MainaDiambo and *** on the side of the Mungiki. According to the witness, at the beginning of the meeting, Mr. Muthaura told the Mungiki, addressing them in Kikuyu, that since "our community" was being targeted in the Rift Valley, they needed to "revenge or retaliate". Thereafter, Mr. Kenyatta took the floor and asked Maina Diambo whether the Mungiki "had plans". Maina Diambo replied confirming that "the 'youth' were ready" and that everything depended on the side of the "government officials" and asked whether the Police would interfere with the Mungiki operation in the Rift Valley. At this point, according to the witness, Mr. Muthaura called Mr. Ali, telling him in Kiswahili, and sounding like he was giving him instructions, "Our youth will be going to the Rift Valley and we don't want them to be disturbed". The witness further reports that Mr. Kenyatta told the Mungiki representatives that plans were being prepared and that there would be another meeting at the Blue Springs Hotel later that day to discuss the logistics of the Mungiki attacks in the Rift Valley and to bring money to be allocated to the Mungiki for this purpose. Moreover, according to the witness, M r. Kenyatta told the Mungiki that ***, would be the person for the Mungiki in charge of organizing the attacks in Nakuru.
Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 676 - 677:
"676. Hategekimana participated in the joint criminal enterprise by leading armed soldiers from the Ngoma Camp to assist Conseiller Jacques Habimana and the other assailants in the attack. The Chamber notes that, prior to Hategekimanas arrival with the Ngoma Camp soldiers, Interahamwe and civilians, who relied principally on traditional weapons, had been unsuccessful in their attack on Mujawayezus residence. The added elements of coordination, armed soldiers and the use of guns proved decisive. The only reasonable inference from the evidence is that Hategekimana participated in a joint criminal enterprise by providing military reinforcements to the Interahamwe and civilians, who were the physical perpetrators of the killings.
677. The Chamber is satisfied that when the initial attack was repelled with the assistance of neighbours, the Interahamwe and armed civilians sought and obtained support from Hategekimana and Ngoma Camp soldiers. In its Factual Findings, the Chamber concluded that the three women were killed with the help of soldiers from the Ngoma Camp; that Hategekimana ordered the killing; and that the attack would not have succeeded without Hategekimana and the Ngoma Camp soldiers. Accordingly, the Chamber finds, beyond reasonable doubt, that Hategekimana committed genocide when, as a co-perpetrator in a joint criminal enterprise, he ordered the deaths of Salomé Mujawayezu, Alice Mukarwesa and Jacqueline Mukaburasa on 23 April 1994. Therefore, the Chamber finds Hategekimana guilty on Count I, genocide."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 644:
"644. General Krstic 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. In particular, at a stage when his participation was clearly indispensable, General Krstic exerted his authority as Drina Corps Commander and arranged for men under his command to commit killings. He thus was an essential participant in the genocidal killings in the aftermath of the fall of Srebrenica. In sum, in view of both his mens rea and actus reus, General Krstic must be considered a principal perpetrator of these crimes .1416"
"1416 The Trial Chamber notes in this respect that Article 141 of the Criminal Code of Republika Srpska (P402/98) provides with regard to genocide that he who orders the commission of genocidal acts or commits such acts shall be punished by imprisonment of at least five years or by the death penalty. This supports the finding that the category of principle perpetrators of genocide is not limited to those physically committing acts of genocide. On 21 July 1993, the National Assembly of Republika Srpska adopted - with minor amendments unrelated to the above provision the Criminal Code of the Socialist Federative Republic of Yugoslavia and renamed it the "Criminal Code of Republika Srpska". See Law on Amendments to the Criminal Code of the Socialist Federative Republic of Yugoslavia (P402/58)."
M.P.14. Evidence that the perpetrator possesses skills or authority that the co-perpetrator lacks.
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 440:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 263:
"697Ibid."
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 490:
B. Evidentiary comment:
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 440, 490:
M.2.2. Essential contribution by co-perpetrators.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 309, 311:
Gerhard Werle, Principles of International Criminal Law (2005), para. 349:
"182 Prosecutor v. Krnojelac, ICTY (Appeals Chamber), judgment of 17 September 2003, para.100: "The Appeals Chamber agrees with the Prosecution that shared criminal intent does no require the co-perpetrators personal satisfaction or enthusiasm or his personal initiave in contributing to the joint enterprise".
183 A. Eser, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 767 at pp. 791 et seq.
184 See Prosecutor v. Tadić, ICTY (Appeals Chamber), judgment of 15 July 1999, paras. 196 et seq., 227. Under these principles, the high-ranking officer Krstic, for example, was convicted as a joint perpetrator, although he "did not conceive the plan to kill the men, nor did he kill them personally. However, he fulfilled a key coordinating role in the implementation of the killing campaign," see Prosecutor v. Krstic, ICTY (Trial Chamber), judgment of 2 August 2001, para. 644.
185 Prosecutor v. Tadić, ICTY (Appeals Chamber), judgment of 15 July 1999, para. 192: "Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aider and abettors might understate the degree of their criminal responsibility."
M.P.17. Evidence of the perpetrators personal fulfilment of one integral part of a crime.
A. Legal source/authority and evidence:
"390. [ ] There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfills the requisite elements of the definition of the substantive offence."
M.P.17.1. Evidence of interrogating a victim while torture is being inflicted.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 256, 268:
M.P.18. Evidence that the perpetrator made a contribution to the commission of a crime.
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. 401-402:
"401. As specified above, the second requirement of indirect co-perpetration is that Mr. Muthaura and Mr. Kenyatta carried out coordinated essential contribution that resulted in the fulfillment of the material elements of the crimes charged.
402. The Chamber recalls that, according to the jurisprudence of the Court, where the persons commit the crimes through others, their essential contribution may consist of activating the mechanisms which lead to the automatic compliance with their orders and, thus, the commission of the crimes. 778 Moreover, the Statute does not require that the essential character of a task be linked to its performance at the execution stage. 779 In this regard, the Chamber recalls the following holding of Pre-Trial Chamber I in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui: "Designing the attack, supplying weapons and ammunitions, coordinating and moving the activities of the direct perpetrators may constitute contributions that must be considered essential regardless of when they are exercised (before or during the execution stage of the crime) "."780
778. Pre-Trial Chamber I, "Decision on the confirmafion of charges", ICC-01/04-01/07-717, para. 525.
779. Pre-Trial Chamber I, "Decision on the confirmation of charges", ICC-01/04-01/07-717, para. 526.
780. Pre-Trial Chamber I, "Decision on the confirmation of charges", TCC-01/04-01/07-717, para. 526.
Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, paras. 198-199:
"198 [ ] The participation in the common purpose need not involve the commission of a crime, but may take the form of assistance in, or contribution to, the execution of the common purpose.522 The contribution need not be necessary or substantial, but it should at least be a significant contribution to the crimes for which the accused is found responsible.523
199. In the present case, the Trial Chamber unambiguously found that, by providing moral support to the assailants, Ndahimana substantially contributed to the killings of Tutsis perpetrated with genocidal intent on 16 April 1994.524 This finding remains undisturbed on appeal.525 On the basis of this finding, the Appeals Chamber finds that Ndahimanas conduct significantly contributed to the killings perpetrated at Nyange Church on 16 April 1994."526
522 See, e.g., Krajinik Appeal Judgement, para. 215; Ntakirutimana Appeal Judgement, para. 466; Tadić Appeal Judgement, para. 227.
523 See Krajinik Appeal Judgement, para. 215; Brđanin Appeal Judgement, para. 430.
524 See Trial Judgement, paras. 828-832.
525 See supra, Section V.B.
526 The Appeals Chamber recalls that "the threshold for finding a significant contribution to a [joint criminal enterprise] is lower than the substantial contribution required to enter a conviction for aiding and abetting." See Gotovina and Markac Appeal Judgement, para. 149. The Appeals Chamber also emphasises that, contrary to the Trial Chambers suggestion, Ndahimanas contribution to the 16 April killings in the form of providing moral support by tacit approval is not to be characterised as an omission. See Trial Judgement, heading Section 4.3.2 and paras. 810, 811. See also Brđanin Appeal Judgement, para. 273; Ntagerura et al. Appeal Judgement, para. 338.
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. 310:
310. Moreover, throughout the period between 30 December 2006 and the post- election violence, Mr. Ruto negotiated and supervised the purchase of guns and crude weapons to implement the criminal plan. He also gave instructions to the perpetrators as to who they had to kill and displace and whose property they had to destroy.
Prosecutor v. v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-T, Judgement (TC), 31 March 2011, paras. 589,599, 606:
"589. Gatetes participation in the joint criminal enterprise is evidenced by his arrival at the gathering with Bourgmestre Mwange, and subsequent instructions to kill Tutsis. As a wellknown and respected figure in Murambi commune, and in particular in Rwankuba sector where he was born, his personal presence at the sector office, together with Bourgmestre Mwange, offered encouragement and moral support to the Interahamwe, and indicated his approval of the killings which followed. Gatetes prominent personality and general authority, as well as his personal presence, would have had a similar encouraging effect on Conseiller Bizimungu, who was later seen with Interahamwe going towards Mumpara from where an attack was subsequently launched.729 The Chamber, thus, considers that Gatetes actions substantially and significantly contributed to the killings. It further finds that Gatetes position of authority and his express orders to kill Tutsis and to "work relentlessly" would have compelled the Interahamwe to kill."
"599. Gatete participated in the joint criminal enterprise in several ways. Through his arrival at the massacre site with soldiers, who facilitated the killings, he provided material support to the killers. As a respected figure in Murambi commune by virtue of his former position as bourgmestre, his presence during the separation of the Tutsis from Hutus, and during the killings, offered further encouragement to the assailants and indicated his approval of their conduct, thus, substantially and significantly contributing to the killings. Indeed, given Gatetes prominent personality and the respect he maintained within the region, his participation would have had a similar encouraging effect on other authority figures there, such as, Conseiller Kamali and Nkundabazungu. Under the circumstances, Gatetes orders would also have compelled the soldiers to facilitate the killings, as well as the Interahamwe and civilian militia, to kill."
"606. Furthermore, Gatetes participation in the joint criminal enterprise is evident through his arrival at the site with guns and grenades, which provided material support to the assailants. Given his position of authority, the Chamber considers that Gatetes arrival with local officials, his express orders to attack, and his presence during the assault, also provided encouragement and moral support to the assailants and further sanction for their conduct, thus, substantially and significantly contributing to the killings. Indeed, his participation would have had a similar encouraging effect on other authorities there, such as Bourgmestre Senkware, Conseiller Gashumba, Lieutenant Twahira, and Ngabonzima. Given these factors, the Chamber further finds that the assailants would have felt compelled to kill in accordance with Gatetes instructions."
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. 555:
555. The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that from the meeting in Aveba to the day of the attack against the village of Bogoro on 24 February 2003:
i. after agreeing on the plan, Germain Katanga and Mathieu Ngudjolo Chui had direct responsibility for its implementation, which includes:
a. ordering the militias to "wipe out" Bogoro village;
b. the distribution of the plan of the attack to FRPI and FNI commanders; and
c. the distribution of weapons and ammunitions.
ii. Germain Katanga played an overall coordinating role in the implementation of the common plan, in particular, by:
a. having direct and ongoing contacts with the other participants in the implementation of the common plan;
b. personally travelling to Beni to obtain weapons and ammunitions;
c. distributing the weapons and ammunitions not only to the FRPI commanders but also to the FNI; and
d. organising the meeting at his Aveba camp where the attack against Bogoro village was planned.
iii. Germain Katanga personally performed other tasks in the implementation of the common plan, in particular, by encouraging the soldiers under his command through military parades in his presence/57 during which songs with hate-filled lyrics were sung.
iv. Mathieu Ngudjolo Chui played an overall coordinating role in the implementation of the common plan, in particular, by:
a. having direct and ongoing contacts with the other participants in the implementation of the common plan;
b. travelling to Beni to obtain weapons and ammunitions;
c. sending Commander Boba Boba on his behalf to the meeting at Aveba Camp, and staying in contact with him through a phonie
d. obtaining weapons and ammunitions as part of the outcome of the meeting at Aveba camp; and
e. distributing the weapons and ammunitions to FNI camps.
v. Mathieu Ngudjolo Chui personally performed other tasks in the implementation of the common plan, in particular, by encouraging the soldiers under his command through military parades in his presence during which songs with hate-filled lyrics were sung.
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 263:
"694 Simic Trial Judgement, para. 158, referring to Ojdanic Appeal Decision on Motion Challenging Jurisdiction , paras 23, 26.
695Tadić Appeal Judgement , para. 227. The Trial Chamber reiterates its finding in the Rule 98bis Decision , para. 26, that "the submission by the Defence that one of the requirements to establish a JCE is to prove the hands-on role of an accused is not supported by the jurisprudence of this Tribunal".
696 Tadić Appeal Judgement , para. 199, referring to the Ponzano case (Trial of Feurstein and others , Proceedings of a War Crimes Trials held at Hamburg, Germany, Judgement of 24 August 1948).
697 Ibid.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 309, 312:
"309. [ ] Physical or direct perpetration of a serious crime that advances the goal of the criminal enterprise would constitute a significant contribution."
"312. In sum, an accused must have carried out acts that substantially assisted or significantly affected the furtherance of the goals of the enterprise, with the knowledge that his acts or omissions facilitated the crimes committed through the enterprise in order to be criminally liable as a participant in a joint criminal enterprise.[...]"
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, paras. 192, 229(iii):
M.P.18.1. Evidence of a contribution at the planning stage of the crime.
Gerhard Werle, Principles of International Criminal Law (2005), para. 349:
"Contributions even at the planning stage are sufficient.185[ ]
185 Prosecutor v. Tadić, ICTY (Appeals Chamber), judgment of 15 July 1999, para. 192: "Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aider and abettors might understate the degree of their criminal responsibility." "
"[A] contribution may be rendered during the entire commission of the crime, from as early as the planning of the crime [ ]"
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. 309:
309. According to the evidence available, there are substantial grounds to believe that Mr. Ruto created the Network or the organisation for the purpose of 'evicting' the PNU supporters. Mr.Ruto also supervised the overall planning and was responsible for the implementation of the common plan to carry out crimes committed in the entire Rift Valley. This role can be clearly detected throughout the series of meetings carried out between 30 December 2006 and 22 December 2007 as well as during the post-election violence period. With respect to the latter. Witness 4 said that on the morning following the announcement of the electoral results, one Kalenjin leader received a message from Mr. Ruto saying that the "votes had been rigged" and that the Kikuyu should be attacked. According to the witness, the "discussion" was to attack Turbo town. Witness 5 also reports that Mr. Ruto continued funding the organisation during the attack by sending 200.000 Kenyan Shillings to one of the field coordinators.
A. Legal source/authority and evidence:
Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 691:
"691. In the Chambers view, the only reasonable inference from the evidence is that a common criminal purpose existed among the Interahamwe, armed civilians and soldiers, who were under Hategekimanas command and followed his orders. Hategekimana participated in the joint criminal enterprise through his orders given during the separation and the abduction of the Tutsi from the Convent. He also participated by providing well-armed soldiers. Hategekimanas actions at the Maison Généralice constituted a significant contribution to the separation, abduction and killing of the Tutsi refugees."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 642, 644:
"1416 The Trial Chamber notes in this respect that Article 141 of the Criminal Code of Republika Srpska (P402/98) provides with regard to genocide that he who orders the commission of genocidal acts or commits such acts shall be punished by imprisonment of at least five years or by the death penalty. This supports the finding that the category of principle perpetrators of genocide is not limited to those physically committing acts of genocide. On 21 July 1993, the National Assembly of Republika Srpska adopted - with minor amendments unrelated to the above provision the Criminal Code of the Socialist Federative Republic of Yugoslavia and renamed it the "Criminal Code of Republika Srpska". See Law on Amendments to the Criminal Code of the Socialist Federative Republic of Yugoslavia (P402/58)."
A. Legal source/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, paras. 780-781, 783:
"780. On the basis of his participation in the events from October 1992 until 16 April 1993, as outlined above, the Trial Chamber finds that the accused attacked his Muslim neighbours solely due to their ethnicity and with the aim of cleansing the village of any Muslim inhabitants.
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.
"783. There can be no doubt on the basis of the circumstances proven that the accused was aware of the wider background to the attack mentioned above, especially with respect to the connection with the beginning of a large-scale armed conflict against the BiH, and that the main if not sole motivation for his participation was the forced expulsion of Muslims from the Lasva River Valley region, thus displaying a clear discriminatory intent. From this it follows that the accused was aware that he would not engage in a battle between military units, but would be attacking helpless and unprepared civilians."
M.P.18.4. Evidence of failing to report or complain of a criminal activity.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 309:
"309. [ ] It may be that a person with significant authority or influence who knowingly fails to complain or protest automatically provides substantial assistance or support to criminal activity by their approving silence, particularly if present at the scene of criminal activity. In most situations, the aider or abettor or co-perpetrator would not be someone readily replaceable, such that any "body" could fill his place. He would typically hold a higher position in the hierarchy or have special training, skills, or talents."
M.P.19. Not sufficient: evidence of mere membership in a criminal enterprise.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 263:
694 Simic Trial Judgement, para. 158, referring to Ojdanic Appeal Decision on Motion Challenging Jurisdiction , paras 23, 26.
M.P.20. Not required: evidence of physical presence when the crime is committed.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement (AC), 28 February 2005, para. 112:
"240 See e.g. Tadić Appeal Judgement, para. 192.
241 Krnojelac Appeal Judgement, para. 81."
Wolfang Zeuss and others (the Natzweiler trial), British Military Court sitting at Wuppertal, verdict of 29 May 1946, paras. 200-201:
