Table of contents:
M.3.1. The perpetrator meant to engage in the conduct;
M.P.10. Evidence of the authority/influence of the suspect
M.P.11. Evidence of a crime being occurred directly after the suspects statement/instruction
M.3.2. The perpetrator meant to cause the consequence of crime; OR
M.3.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.
M.3.4. The perpetrator was aware of the circumstance of the crime.
Element:
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 32:
"32. With respect to "instigating", a person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating. Instigating with such awareness has to be regarded as accepting that crime."
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. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 492:
M.3.1. The perpetrator meant to engage in the conduct;
M.P.10. Evidence of the authority/influence of the suspect
M.P.11. Evidence of a crime being occurred directly after the suspect’s statement/instruction
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."
M.3.2. The perpetrator meant to cause the consequence of crime; OR
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 586:
''586. As regards Tolimir’s submission that the Trial Chamber erred by inferring his genocidal intent with regard to the crime of conspiracy to commit genocide on a wider factual basis than merely the agreement to kill the able-bodied men from Srebrenica, the Appeals Chamber recalls that – as correctly noted by the Trial Chamber – the mens rea for the two crimes of genocide and conspiracy to commit genocide is the same and that genocidal intent may be inferred from the totality of evidence.1784 The Appeals Chamber therefore finds that the Trial Chamber did not err in relying on its findings as to the mens rea for the crime of genocide to establish the mens rea required for the conspiracy to commit genocide.1785''
1784 Trial Judgement, paras 745, 1161. See Stakić Appeal Judgement, para. 55.
1785 Trial Judgement, para. 1176.
M.3.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.
M.3.4. The perpetrator was aware of the circumstance of the crime.
