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Suggesting a crime aiding and abetting

Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto. The issue here is to whether the individual criminal responsibility provided for in Article 6 1 is incurred only where there was aiding and abetting at the same time. The Chamber is of the opinion that either aiding or abetting alone is sufficient to render the perpetrator criminally liable. In both instances, it is not necessary for the person aiding or abetting another to commit the offence to be present during the commission of the crime.

According to A. See also B. In the British case of Schonfeld , four of the ten accused were found guilty of being "concerned in the killing of" three Allied airmen, who had been found hiding in the home of a member of the Dutch resistance. All four claimed that their purpose in visiting the scene had been the investigation and arrest of the Allied airmen.

One admitted to shooting the three airmen but claimed it was in self- defence; he was found guilty and sentenced to death. The roles of the three others were less direct. One drove a car to the scene and was the first to enter the house. Another had obtained the original information, searched a different house for the airmen earlier and claimed to have stood guard at the back entrance to the house along with the fourth convicted person.

All except one denied having fired any shots themselves. The court did not make clear the grounds on which it found these three to have been "concerned in the killing". In doing so he gave an example of how an individual may participate without giving tangible assistance:. Again, in giving "additional confidence to his companions" the defendant facilitates the commission of the crime, and it is this which constitutes the actus reus of the offence.

The prosecutor referred to Regulation 8 ii of the Royal Warrant concerning units or groups of men discussed above, and this may have been taken into consideration by the court. In his reference to English substantive law on complicity, the Advocate General included the doctrine of "common design", whereby if a group sets out to commit a crime, all are equally guilty of the act committed by one of them in the pursuance of that criminal goal whether or not they materially contribute to the execution of the crime.

Schonfeld, p. V, Law Reports , p. Fatmir Limaj et. A further incident involving Haradin Bala relates to the mistreatment of L04 which theChamber has found constituted cruel treatment. As established earlier, L04 was then blindfolded, taken out of the room and beaten by individuals L04 believed to be Tamuli and Qerqiz. Shala had an automatic weapon and was guarding the door. He, however, did not personally join in the beating of L The Chamber accepts the evidence of L04 on the circumstances of his mistreatment.

It finds that Haradin Bala did not inflict physical suffering on L He did, however, provide practical assistance to the direct perpetrators of the offence of cruel treatment. He better ensured there was no prospect of L04 escaping from the beating, or of the beating being seen or disrupted by third persons. In the circumstances, Haradin Bala could not have been ignorant of the intentions of the direct perpetrators. He certainly knew that a crime was being committed. Nonetheless, he remained and so he facilitated its commission.

He is therefore responsible for aiding the crime of cruel treatment in respect of L In the Trial of Otto Sandrock and Three Others " Almelo case" , the defendants were charged with the commission of a war crime for killing a prisoner of war and a Dutch civilian. This trial, which was conducted by the British Military Court, invoked Regulation 8 ii of the Royal Warrant of 14 June as amended by Royal Warrant of 4 August , which provided:.

Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group, may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime.

The Judge-Advocate ruled that each of the defendants knew that they were going to the woods for the purpose of killing the victims and that "[i]f people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law.

I Law Reports 35, 43 In his statement pursuant to Rule 84 bis , his closing argument and his Final Brief, the Accused does not deny that crimes were committed in Vukovar, but asserts that he was not present at the crime scenes and that the SRS did not exist there. Callixte Kalimanzira , Case No. The Chamber finds that the allegations at paragraph 9 of the Indictment have been proven beyond reasonable doubt.

On Saturday, 23 April , Kalimanzira went to the Gisagara marketplace where thousands of Tutsi refugees had gathered to escape the killings, lootings, and house burnings in their areas. That same day, he stopped 13 refugees leaving Kabuye cellule on the Gisagara-Kabuye road and instructed them to go to back to Kabuye hill, promising that nothing would happen to them. His behaviour at the Mukabuga roadblock earlier that day demonstrates that he knew the Tutsis at Kabuye hill were being attacked and that he intended for them to be killed.

In these ways, he personally encouraged Tutsis to take refuge on the hill in order to facilitate their subsequent killings, a consequence which he was clearly aware of and motivated by. The impact of this finding will be discussed below. The Appeals Chamber has already found that the Appellant knew that the seven Muslim men were to be killed; that he walked armed with the group from the place where they had parked the cars to the Drina River; that he pointed his gun at the seven Muslim men; and that he stood behind the Muslim men with his gun together with the other three offenders shortly before the shooting started.

The Appeals Chamber believes that the only reasonable inference available on the totality of evidence is that the Appellant knew that his acts would assist the commission of the murders. The Trial Chamber is satisfied that the ARK Crisis Staff practically assisted the commission of crimes by the army, the police and paramilitary organisations by, inter alia , demanding the disarmament of non-Serbs through announcements and decisions setting deadlines concerning the surrender of weapons and providing for the eventual forceful confiscation of weapons.

These announcements and decisions not only facilitated the Bosnian Serb armed take-over of individual municipalities but on many occasions were used as the pretext for such take-overs. By his actions, Nchamihigo aided and abetted their killing. The Chamber is satisfied that he did this because they were Tutsi and in furtherance of his intention to destroy the Tutsi ethnic group in whole or in part, and that he did this as part of a widespread or systematic attack on the Tutsi civilian population.

The Appeals Chamber, Judges Pocar and Liu dissenting, finds that the Trial Chamber committed multiple errors in convicting the Appellant for the killing of the three Tutsi girls. Second, it made an erroneous factual finding which was particularly prejudicial because it attributed incriminating statements to the Appellant which he did not in fact make. Dragoljub Kunarac et al. The Trial Chamber is also satisfied that Kunarac took these women to this house in the knowledge that they would be raped by soldiers during the night.

The Trial Chamber finds that Kunarac took FWS to one of the rooms of the house and forced her to have sexual intercourse in the knowledge that she did not consent. The fact that Kunarac took the girls to the house and left them to his men in the knowledge that they would rape them constituted an act of assistance which had a substantial effect on the acts of torture and rape later committed by his men.

He therefore aided and abetted in that torture and rape. As has been noted above, Esad Landzo admits that he took Simo Jovanovic out of Hangar 6 on the relevant evening, but denied that he joined the others in beating him. However, this version of events is not convincing.

All of the witnesses testified that Mr. Landzo had taken Mr. Jovanovic out of the Hangar on previous occasions, during which he was also mistreated by other guards who knew him from his home village. It appears the Mr.

Landzo did not report these incidents to the relevant persons in the prison-camp. Furthermore, there is witness testimony that Mr. Landzo himself had, on occasion, beaten the deceased inside the Hangar. In addition, on the day in question, at the very least, Mr. Landzo must have known why the other guards wished Simo Jovanovic called from the Hangar and he willingly lent his hand to the assailants. Therefore, even if his explanation that he did not personally hit the deceased were to be accepted, Esad Landzo cannot absolve himself of responsibility for his death as he clearly, at the very least, was in the position of facilitating the perpetration of the offence.

As has been previously discussed individual criminal responsibility arises where the acts of the accused contribute to, or have an effect on, the commission of the crime and these acts are performed in the knowledge that they will assist the principal in the commission of the criminal act. Landzo himself stated that he had been posted outside of the Hangar to guard the detainees therein and there can be little doubt that he was aware of the intentions of Mr.

By withdrawing the JNA guards, he at once enabled the TO and paramilitary forces to have direct and unrestrained physical access to the prisoners of war. This substantially assisted them to commit the murders that followed, in that it had an immediate effect on their ability to perpetrate the murders. Further, by the removal of the restraint it encouraged the release of their emotions.

In this respect, the Trial Chamber considers that the Accused were not physically present together with the Unit during these two operations. The Trial Chamber also recalls the evidence indicating the military character of the training at the Unit camps, see chapter 6. As reviewed in chapter 6. Rather, such assistance may have been directed towards establishing and maintaining Serb control over these areas.

As such, the majority, Judge Picard dissenting, is unable to conclude that the assistance rendered to the Unit by the Accused aided and abetted the crimes in Doboj and Bosanski Samac. The Trial Chamber recalls its findings in chapters 6. Furthermore, in none of the incidents where members of these other groups committed crimes, did the Accused play any more specific role in providing assistance.

Moreover, all of the crimes were committed in the context of military operations. Therefore, for the reasons set out above, the majority, Judge Picard dissenting, is unable to conclude that the Accused aided and abetted crimes perpetrated by the SDG, the SAO Krajina Police, the Skorpions, or other groups. Protais Zigiranyirazo , Case No. The Chamber finds that by bringing L12 to the barn and being present throughout the beating by others, Haradin Bala did contribute to the commission of the crime substantially enough to regard his participation as aiding the offence committed by the direct perpetrators.

In the circumstances, Haradin Bala must have become aware, at least at the time of the beating, that the assailants were committing a crime and of their state of mind. Accordingly, he possessed the mens rea required for aiding and abetting […]. The Akayesu Trial Chamber Judgement emphasized that aiding and abetting , "which may appear to be synonymous, are indeed different. Nikola Sainovic, Case No.

The Appeals Chamber notes that Lazarevic was neither charged with nor convicted of crimes committed in Kosovo in The Appeals Chamber therefore dismisses sub-ground 3 a of his appeal. Trial Judgement, vol. See also ibid. Lazarevic further argues that the Trial Chamber misinterpreted the Grom 3 and Grom 4 plans which were issued for the defence of the country — not aimed at the civilian population — and were planned at a higher level than the Pristina Corps.

Lazarevic further submits that the Joint Command did not exist and did not represent any real command body, or at least that he was not aware of any such parallel command during the Kosovo conflict ibid. P, p.

P, T. The Appeals Chamber recalls that the fact that an accused acted pursuant to superior orders does not relieve him of criminal responsibility and that, even where a lawful order exists to conduct an operation, an accused may still incur criminal responsibility for crimes committed in the course of that operation.

Accordingly, his argument that he was following orders and that his actions were thus not voluntary is inapposite and he has failed to show any error on the part of the Trial Chamber. Article 7 4 of the Statute. However, acting under superior orders might be considered in mitigation of sentence if the interests of justice so require see ibid.

Whether the resort to the use of force is legitimate under international law is a question of jus ad bellum, which is distinct from whether the way in which that force was used was legal under international humanitarian law, i. The rules of international humanitarian law do not require a military commander to refrain from defending his country but demand that he ensure that his conduct and that of his subordinates comply with established humanitarian principles.

The Appeals Chambers finds that a reasonable trier of fact could have concluded that undertaking such tasks, with the awareness that the crimes of deportation and forcible transfer were being committed by the troops, amounts to rendering practical assistance to the perpetrators. See supra, sub-section VIII. See also Lukic and Lukic Appeal Judgement, para. The Appeals Chamber further recalls that it has dismissed challenges of Sainovic, Pavkovic, and Lukic in relation to the existence and functioning of the Joint Command see supra, sub-section VII.

P, Exh. The Trial Chamber found that such re-subordination did not occur in practice; rather, it found that the relationship between the VJ and the MUP remained that of cooperation and coordination. The Appeals Chamber recalls its finding that the Trial Chamber erred in concluding that based on his knowledge of events by the end of , Lazarevic was aware that forcible displacement was likely to occur if he ordered the VJ to operate in Kosovo in The Appeals Chamber recalls in this respect that the principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises his actus reus Cf.

The mens rea of an aider and abettor must therefore exist at the time he provides assistance to the crime for which he is held responsible See, e. Appeal Judgement, para. See Trial Judgement, vol. P , In this context, the Appeals Chamber recalls that the Trial Chamber found that Lazarevic participated in the planning and execution of the joint operations conducted by the VJ and thereby substantially contributed to the commission of the crimes by the VJ as such conduct provided assistance in terms of soldiers on the ground to carry out the acts, organising and equipping VJ units, and the provision of weaponry, including tanks, to assist these acts.

See also supra, para. The Appeals Chamber therefore finds that Lazarevic has failed to demonstrate that the Trial Chamber erred in finding that he aided and abetted the crimes of deportation and forcible transfer through his involvement in the joint operations of the MUP and the VJ in Trial Judgement, paras.

See Kanyabashi Response Brief, paras. See ibid. See Trial Judgement, para. The Trial Chamber did not make specific legal findings in this respect. See Prosecution Appeal Brief, para. As an inchoate crime, direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time, and is punishable even if no act of genocide has resulted therefrom.

Nzabonimana Appeal Judgement, para. Trial Judgement, para. Augustin Ngirabatware, Case No. The Appeals Chamber notes that paragraph 41 of the Indictment alleges that, in February , Ngirabatware went to the Cyanika-Gisa roadblock, addressed the Interahamwe youths manning the roadblock and gave them and Honore Ndayamiyemenshi money "as encouragement and incitement for their work in capturing and killing Tutsis". Paragraph 49 of the Indictment alleges that, towards the end of February , Ngirabatware went to the same roadblock and addressed the youths who were present, including Ndayamiyemenshi, "incit[ing] them to kill members of the Tutsi population, by telling them that the Hutu leader was murdered the night before, and called on them to kill all the Tutsis".

The Appeals Chamber notes that in its analysis, the Trial Chamber discussed the evidence in relation to the allegations contained in paragraphs 41 and 49 of the Indictment together. On the basis of the evidence presented, the Trial Chamber found that Ngirabatware's instruction to "'kill Tutsis' objectively and unambiguously called for an act of violence" prohibited under Article 2 2 of the ICTR Statute.

As to the allegation contained in paragraph 41 of the Indictment that Ngirabatware gave money at the roadblock, the Trial Chamber found that the Prosecution had failed to prove that weapons used in attacks against Tutsis were purchased with this money. Charles Ghankay Taylor, Case No. In mid-June , Taylor advised Bockarie to recapture Kono so that the diamonds there would be used to purchase arms and ammunition, which resulted in the Fitti-Fatta attack in mid-June Trial Judgment, paras , , , Zlatko Aleksovski , Case No.

The Trial Chamber had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal. Subsequently, in the Tadic Judgement, the Appeals Chamber briefly considered the liability of one person for the acts of another person where the first person has been charged with aiding and abetting that other person in the commission of a crime.

It made the following points in relation to the aider and abettor: The citations of authority have been omitted. On the basis of the evidence set forth herein, the Chamber finds beyond a reasonable doubt that the Accused had reason to know and in fact knew that sexual violence was taking place on or near the premises of the bureau communal, and that women were being taken away from the bureau communal and sexually violated.

There is no evidence that the Accused took any measures to prevent acts of sexual violence or to punish the perpetrators of sexual violence. In fact there is evidence that the Accused ordered, instigated and otherwise aided and abetted sexual violence.

The Accused watched two Interahamwe drag a woman to be raped between the bureau communal and the cultural center. The two commune policemen in front of his office witnessed the rape but did nothing to prevent it. On the two occasions Witness JJ was brought to the cultural center of the bureau communal to be raped, she and the group of girls and women with her were taken past the Accused, on the way.

On the first occasion he was looking at them, and on the second occasion he was standing at the entrance to the cultural center. On this second occasion, he said, "Never ask me again what a Tutsi woman tastes like. When Witness OO and two other girls were apprehended by Interahamwe in flight from the bureau communal, the Interahamwe went to the Accused and told him that they were taking the girls away to sleep with them. The Accused said "take them. He was laughing and happy to be watching and afterwards told the Interahamwe to take her away and said "you should first of all make sure that you sleep with this girl.

The Tribunal finds, under Article 6 1 of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of i and in his presence in respect of ii and iii , and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:.

With regard to the acts alleged in paragraphs 12 A and 12 B of the Indictment, the Prosecutor has shown beyond a reasonable doubt that between 7 April and the end of June , numerous Tutsi who sought refuge at the Taba Bureau communal were frequently beaten by members of the Interahamwe on or near the premises of the Bureau communal.

Some of them were killed. Numerous Tutsi women were forced to endure acts of sexual violence, mutilations and rape, often repeatedly, often publicly and often by more than one assailant. Tutsi women were systematically raped, as one female victim testified to by saying that "each time that you met assailants, they raped you". Numerous incidents of such rape and sexual violence against Tutsi women occurred inside or near the Bureau communal.

It has been proven that some communal policemen armed with guns and the accused himself were present while some of these rapes and sexual violence were being committed. Furthermore, it is proven that on several occasions, by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that "never ask me again what a Tutsi woman tastes like" In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed.

In the opinion of the Chamber, the above-mentioned acts with which Akayesu is charged indeed render him individually criminally responsible for having abetted in the preparation or execution of the killings of members of the Tutsi group and the infliction of serious bodily and mental harm on members of said group. The Chamber also finds that the Prosecution has proven beyond reasonable doubt that, by doing so, Kalimanzira both instigated and aided and abetted genocide.

By asking those men at the roadblock why they had not killed the Tutsis who were detained there, Kalimanzira prompted those men to kill the Tutsis; by providing the weapon with which at least some of those Tutsis were killed, Kalimanzira assisted in the perpetration of their murders.

Kalimanzira exhibited here, as elsewhere, an intent to destroy the Tutsi group see III. For these reasons, the Chamber finds Kalimanzira guilty beyond reasonable doubt of having instigated and aided and abetted genocide at a roadblock on the Butare-Gisagara road on or around 22 April Bearing in mind the previously articulated principles of notice, the Appeals Chamber considers that Kalimanzira could not have known, on the basis of the Indictment alone, that he was being charged in connection with the killings at the Butare-Gisagara roadblock.

Accordingly, the Appeals Chamber finds, as the Trial Chamber concluded, that paragraph 15 of the Indictment is defective. The Prosecution does not allege that the Accused was a military leader, nor does it base his criminal responsibility on Article 7 3 of the Statute of the Tribunal, applicable to a military or civilian superior. Nevertheless, the Prosecution does attribute extensive authority to the Accused, which he also wielded in the conflict zones that he visited in order to boost the morale of his troops.

The Prosecution submits that the Accused established a War Staff within his party that notably took care of logistical needs and the deployment of volunteers; that he was kept regularly informed of the activities of his troops; that he had the power to intervene with volunteers and to promote them, and that he had even decorated some of them by conferring upon them the rank of Vojvoda , which he himself held.

Ndayambaje had objected to the vagueness of paragraph 6. See Ndayambaje Closing Brief, paras. The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and that the Prosecution should therefore indicate precisely which form of responsibility is invoked based on the facts alleged. Uwinkindi Appeal Decision, para. The Appeals Chamber observes that the Prosecution generally indicated in the charging section of the Indictment that the relevant counts were pursued pursuant to Article 6 1 of the Statute, without specifying any particular form of responsibility.

In paragraph 6. Although the Prosecution alleged in paragraph 6. In this context, the Appeals Chamber is not satisfied that the Indictment put Ndayambaje on sufficient notice of his particular acts or course of conduct which formed the basis for the charge of aiding and abetting the massacres invoked in paragraph 6.

The Appeals Chamber stresses that the relevant question is not whether Ndayambaje was given notice that he was charged with aiding and abetting crimes, but whether he was given notice that he was charged with aiding and abetting the killings alleged in paragraph 6. 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 Ndayambaje aided and abetted the massacres in which he was alleged to have participated in paragraph 6.

Ndayambaje also argues in general terms in his appeal brief that the Trial Chamber erred in convicting him as the Ndayambaje Indictment failed to plead his genocidal intent. See Ndayambaje Appeal Brief, para. See Ndayambaje Indictment, p. In defending against the allegation that he was not present during the days of the attacks, Ndayambaje testified and called witnesses to support his alibi for 20 and 21 April and to rebut the allegations of his presence which, together with his moral authority, is the basis of his conviction for aiding and abetting the killings at Mugombwa Church.

See also The Prosecutor v. Witness QAR, T. See Trial Judgement, paras. As discussed above, the Trial Chamber provided clear and explicit reasons in support of its finding that Ndahimana substantially contributed to the killings perpetrated at Nyange Church on 16 April Likewise, Ndahimana fails to demonstrate that it was unreasonable for the Trial Chamber to conclude, despite the absence of direct evidence on the matter, that he knew that the physical destruction of the church using a bulldozer would cause the deaths of the Tutsis who had sought refuge in the church.

The Chamber accepts that Ndayambaje spoke at the meeting, particularly given that its purpose was to inaugurate him as bourgmestre. The Trial Chamber convicted Kalimanzira for aiding and abetting genocide, in part, based on his presence at the 22 June inauguration of Elie Ndayambaje as bourgmestre of Muganza Commune, Butare Prefecture, during which Ndayambaje instigated the killing of Tutsis. Kalimanzira submits that the Trial Chamber erred in convicting him in relation to this incident.

In this respect, Kalimanzira contends that there is insufficient evidence demonstrating that killings in fact followed the ceremony. The Appeals Chamber recalls that "an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.

The Appeals Chamber, Judge Pocar dissenting, considers that it is unclear from either account whether the witnesses had first-hand knowledge of the killings or whether their evidence was hearsay. They refer to no particular incident, provide no approximate time-frame for the killings, and do not give any identifying information concerning the assailants or victims.

In such circumstances, the Appeals Chamber finds, Judge Pocar dissenting, that it is impossible to determine with any reasonable certainty whether any killings in fact occurred following the meeting and, if so, the degree to which they were related to the ceremony. In the Muvunyi case, the Appeals Chamber reversed a conviction for genocide because the evidence of the killings which underpinned the finding of guilt were based on second- or third-hand testimony that "contain[ed] no detail on any specific incident or the frequency of the attacks.

No reasonable trier of fact could have concluded that Tutsis were killed as a result of the ceremony in circumstances where it heard no evidence about even a single incident. See also T. See also Seromba Appeal Judgement, para. See also Br anin Appeal Judgement, para. See also Muvunyi Appeal Judgement, paras. The position of the accused has already been discussed. He did not personally rape Witness A, nor can he be considered, under the circumstances of this case, to be a co- perpetrator. The accused's presence and continued interrogation of Witness A encouraged Accused B and substantially contributed to the criminal acts committed by him.

On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7 1 and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B.

He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute. In finding Nsabimana responsible under Article 6 1 of the Statute for aiding and abetting by omission, the Trial Chamber found that, in his capacity as prefect, Nsabimana had the legal duty to provide assistance to people in danger, to ensure the tranquillity, public order, and security of people, and to protect civilians, including the wounded and sick, against acts or threats of violence.

Nsabimana submits that the Trial Chamber erred in law and in fact in finding that he had a legal duty to act, that his omission substantially assisted the perpetration of the crimes, and that he had the ability to act. Nsabimana Notice of Appeal, paras. See also Nsabimana Reply Brief, paras. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act.

The Prosecution responds that the Trial Chamber did not err in finding that Nsabimana had a legal duty to act. Prosecution Response Brief, paras. See also AT. Appeal Judgement, paras. The Prosecution asserts that the approach of the Appeals Chamber is rather that, irrespective of the source of the duty, the legal duty to act must be one whose breach gives rise to individual criminal responsibility.

The Appeals Chamber notes that Nsabimana seeks to substantiate his claim that the Trial Chamber erred in finding that Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act by arguing that criminal liability for failure to discharge a legal duty must derive from a duty imposed by criminal law and that the Trial Chamber failed to indicate the legal sanction provided under such texts. The Appeals Chamber observes that Nsabimana almost exclusively develops his contentions by arguing that he lacked the material ability to act.

These arguments are discussed in detail below. See infra, Section VI. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law. The Trial Chamber also relied on provisions of the laws and customs of war which it considered give rise to individual criminal responsibility in case of violation of such provisions.

The Trial Chamber, relying on various sources of Rwandan law, observed that Nsabimana, in his capacity as prefect, had the power to request the intervention of the Rwandan army to restore public order and the ability to verbally request the intervention of the gendarmerie. Nsabimana Appeal Brief, paras. Nsabimana stresses that apart from gendarmes, and to a certain extent soldiers, the prefect cannot requisition any other force to maintain peace and security.

See Nsabimana Appeal Brief, para. Nsabimana similarly contends that he did not have the ability to discharge his duties pursuant to Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II of the Geneva Conventions. Nsabimana recalls that the Nsabimana and Nteziryayo Indictment and some Prosecution witnesses alleged that the Rwandan Armed Forces were involved in crimes, and that several officers have been convicted in that regard. See Nsabimana Appeal Brief, paras.

While Nsabimana acknowledges that Rwandan law empowered the prefect to requisition the Rwandan Armed Forces, he contends that this text was not sufficient for the Trial Chamber to conclude that he had the ability to requisition the Rwandan Armed Forces or post soldiers prior to June Furthermore, Nsabimana contends that his ability to post soldiers at the prefectoral office around 5 June does not necessarily mean that he had the ability to do so prior to that date. Nsabimana Appeal Brief, para.

See also Nsabimana Reply Brief, para. The Prosecution responds that the Trial Chamber correctly found that Nsabimana had the material ability to act, as demonstrated by his requisition of forces to protect refugees at the prefectoral office around 5 to 15 June It further points out that when Nsabimana orally requested military personal, his request was complied with and soldiers were posted at the prefectoral office for the purpose of offering protection.

See idem. The Appeals Chamber recalls that aiding and abetting by omission necessarily requires that the accused had the ability to act, such that there were means available to the accused to fulfil his duty. The Trial Chamber properly assessed whether a possibility was open to Nsabimana to call on the Rwandan army or the gendarmes to protect refugees and found that:.

Nsabimana in fact requisitioned forces around June Nsabimana appears to argue that his ability to obtain security forces in June resulted from the coincidental confluence of circumstances, rather than his ability to do so based on Rwandan law.

Nsabimana avers that, according to Article 32 of the 11 March Law, the prefect may make a verbal requisition but must confirm this in writing. Nsabimana submits, however, that his actions did not amount to a requisition because: i he used his own relationships, namely through Colonels Munyengango and Mugemanyi, to have soldiers from outside Butare posted at the prefectoral office; ii the Trial Chamber did not ascertain whether gendarmes or soldiers were posted; and iii no evidence was adduced to establish that the Rwandan army hierarchy had received a written requisition from Nsabimana.

The Trial Chamber considered his efforts when it assessed mitigating factors in relation to his sentence. Nyiramasuhuko et al. The evidence does not support an argument that Nsabimana committed, planned, ordered, or instigated the crimes perpetrated at the BPO.

The Chamber will therefore address only whether he aided and abetted these crimes. An accused may be responsible for aiding and abetting in two different manners: 1 by positive acts including, providing tacit approval and encouragement; or 2 by omission, namely failing to discharge a legal duty to act. Aiding and abetting by tacit approval and encouragement appears to require the presence of the accused at or near the scene of the crime.

Here, it was not contested that Nsabimana was absent from the BPO at night when the attacks were perpetrated by Nyiramasuhuko, Ntahobali and Interahamwe. However, aiding and abetting by omission may serve as a basis for liability even where the accused is not present at or near the scene of the crime. Pursuant to this form of responsibility, the failure to discharge a legal duty must assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect on the realisation of that crime.

This implicitly requires that the accused had the ability to act, such that the means were available to the accused to fulfil his or her duty. The aider and abettor must know that his or her omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal perpetrator. The Prosecution argues that Nsabimana is responsible for the abductions, rapes and killings at the BPO when those taking refuge there should have been under his protection.

A prerequisite of criminal liability for aiding and abetting by omission is a legal duty to act. The Chamber notes that the Rwandan Penal Code imposes an obligation on every Rwandan citizen to provide assistance to persons in danger where it would not cause risk to oneself, and failure to do so is a criminal offence.

This obligation was considered by the Trial Chamber in Rutaganira at sentencing. Although the Rwandan Penal Code provides a justification for failure to act, namely where there is risk to oneself, the Rutaganira Trial Chamber held that "[v]iolence to physical well-being suffered by thousands of people during the said events affects the very fundamental interests of Humanity as a whole, and the protection of such interests cannot be counterbalanced by the mere personal risk that may have been faced by any person in a position of authority who failed to act in order to assist people whose lives were in danger.

The Appeals Chamber in the Ntagerura et al. In the circumstances of that case, the Appeals Chamber found that it was not necessary for it to decide the issue. The Chamber further notes that a legal duty to act may also be imposed by the laws and customs of war.

However, Additional Protocol II to the Geneva Conventions contains similar obligations and is applicable to noninternational armed conflicts. The Chamber notes that Article 7 of Additional Protocol II to the Geneva Conventions provides: "All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected.

The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

It was clear that the Tutsis taking refuge at the BPO were civilians and that many of them were sick and injured. Although these provisions do not explicitly reference individual criminal liability, the Chamber considers they are applicable to the situation prevailing at the BPO from the end of April to mid-June The Chamber considers the criminalisation of individual conduct, includes, but is not limited to Article 3 common to the Geneva Conventions.

This obligation clearly covers the Conventions in their entirety and this obligation thus includes common Article 3. Therefore, these provisions impose a legal duty on the Accused to protect civilians, including the wounded and sick, against acts or threats of violence.

The Chamber has found that Nyiramasuhuko, Ntahobali, Interahamwe and soldiers were responsible for raping numerous Tutsi women and for killing hundreds of Tutsi refugees abducted from the BPO from mid-May until mid-June At that time, soldiers were seconded to the BPO under the command of a female lieutenant. Despite this, Nsabimana failed to take any steps to prevent the ongoing attacks at the BPO for a significant period between the end of April and mid-June These means were available to Nsabimana to fulfil his duty and to forestall these harms, but he did nothing.

Nsabimana knew that those taking refuge at the BPO were Tutsis and on multiple occasions, they asked him directly for protection from the ongoing attacks. He knew that they were being abducted, raped and killed. Nsabimana admitted that he was aware of a plan to kill Tutsis, that Tutsis were being killed, and that the militia had been trained for this purpose.

Furthermore, the Chamber concludes that Nsabimana also knew that his failure to act assisted in the commission of the crimes. Nsabimana knew the attacks were occurring at night when he was not at the BPO and when there were likely to be fewer witnesses. Moreover, he testified that after he learned of the massacres, he would go home at night fearing that the refugees would not be at the BPO when he returned in the morning.

Yet, the perpetrators of these attacks were given free reign to repeatedly attack the BPO for a significant period between the end of April and mid-June Although Nsabimana posted gendarmes or soldiers at the BPO around June , he was responsible for aiding and abetting genocide for failing to discharge his duty to protect civilians until that time. Noting that Nsabimana was charged with this culpable omission, the Chamber finds him guilty of aiding and abetting genocide.

The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. The English legal authority William Blackstone , in his Commentaries , defined an accessory as:.

AN accessory is he who is not the chief actor in the offense, nor present at its performance, but is someway concerned therein, either before or after the fact committed. As to the second point, who may be an accessory before the fact; Sir Matthew Hale 12 defines him to be one, who being absent at the time of the crime committed, does yet procure, counsel, or command another to commit a crime.

Herein absence is necessary to make him an accessory; for such procusence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory.

As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. The Criminal Code has several sections which deal with accessory to offences:. For these purposes, abetting means "to encourage or set on" and an abettor is "an instigator or setter on, one who promotes or procures a crime to be committed Note that under s.

Article states that "the accomplice to the offence, in the meaning of article , is punishable as a perpetrator". Article distinguishes, in its two paragraphs, complicity by aiding or abetting and complicity by instigation. It thus states that:. The accomplice to a felony or misdemeanor is the person who, by aiding or abetting, facilitates its preparation or commission. Any person who, by means of a gift, promise, threat, order or an abuse of authority or powers, provokes the commission of an offence or gives instructions to commit it, is also an accomplice.

It follows from this article that in order to incur liability as an accomplice, that person must have participated in the unlawful act of the principal and must have intended the principal to succeed. The theory of assumed criminality requires that the participation of an accomplice must be linked to an offence actually committed by a principal.

Each penal provision in the Norwegian criminal code specifies if it is criminal to aid and abet. Further, when the attempt is criminal, participating in that attempt is criminal. The law governing complicity in criminal offences originally arose from the common law, but was codified in section 8 of the Accessories and Abettors Act as amended by s.

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender. Mere presence at the scene of a crime is not enough, even where the defendant remains at the scene to watch the crime being committed. In R v Coney 8 QBD , where a crowd watched an illegal prize fight, it was held that there must be active, not mere passive, encouragement.

Hence, even though the fight would not have taken place without spectators prepared to bet on the outcome, the spectators were acquitted because their presence was accidental. It would have been different if they had attended at the scene of a crime by prior agreement because their mere presence would be an encouragement.

Similarly, in R v J. Alford Transport Ltd 2 Cr. This will be a natural inference in any situation where the alleged accessory has the right to control what the principal is doing. A mens rea is required even when it is not required for the principal offender for example, when the principal commits a strict liability offence. The defendant must intend to do the acts which he knows will assist or encourage the principal to commit a crime of a certain type. In R v Bainbridge 1 QB the defendant supplied cutting equipment not knowing exactly what crime was going to be committed, but was convicted because the equipment supplied was not used in the ordinary way, but for a criminal purpose instead.

The accomplice must also know of all the essential matters that make the act a crime, but need not know that the act would amount to a crime because ignorantia juris non excusat. In National Coal Board v Gamble 1 QB 11 the operator of a weighbridge was indifferent as to whether the principal committed the offence which is generally not a sufficient mens rea , but the NCB was convicted because the act of the employee was an act of sale see vicarious liability.

Gillick v West Norfolk and Wisbech Area Health Authority AC is an example of a type of case where the uncertainties of the precise meaning of intention effectively confer a sometimes welcome discretion on whether to impose responsibility. That case concerned the question of whether a doctor giving contraceptive advice or treatment to a girl under the age of 16 could be liable as an accessory to a subsequent offence of unlawful sexual intercourse committed by the girl's sexual partner.

The Lords held that generally this would not be the case the action was a civil one for a declaration since the doctor would lack the necessary intention even though he realised that his actions would facilitate the intercourse.

One rationale for the decision would be that a jury would not infer intention in such circumstances if they thought that the doctor was acting in what he considered to be the girl's best interests. In Scotland , under section of the Criminal Procedure Scotland Act , a person may be convicted of, and punished for, a contravention of any enactment, notwithstanding that he was guilty of such contravention as art and part only.

All U. The Model Penal Code 's definition of accomplice liability includes those who at common law were called accessories before the fact; under the Model Penal Code , accomplices face the same liability as principals. It is now possible to be convicted as an accessory before the fact even though the principal has not been convicted or in most jurisdictions even if the principal was acquitted at an earlier trial. However, modern U. Some states still use the term "accessory after the fact"; others no longer use the term, but have comparable laws against hindering apprehension or prosecution, obstruction of justice , tampering with evidence , harboring a felon, or the like.

Such crimes usually require proving 1 an intent to hinder apprehension or prosecution and 2 actual aid in the form of either a harboring the criminal, b providing specified means such as a disguise to evade arrest, c tampering with evidence, d warning the criminal of impending arrest, or e using force or deception to prevent the arrest. Federal law has followed both these trends. The U. Code effectively treats as principals those who would traditionally have been considered accessories before the fact at common law: [4].

However, federal law treats accessories after the fact differently from principals. Accessories after the fact face a maximum of only half the fine and half the prison time that principals face. If the principal faces the death penalty or life imprisonment, accessories after the fact face up to 15 years' imprisonment.

Federal law defines accessories after the fact as persons who provide criminals with certain aid in order to hinder a criminal's apprehension or prosecution: [5].

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Discussion : When should offering general support to an individual who commits a crime constitute accessory? Is a person an accessory if she knowingly provides the accused with a weapon or tools to commit a crime? What if the third party simply provides information to the accused that is useful in committing the crime? What if a person allows the accused to stay with them after learning that there is a warrant for the accuseds arrest? Practice Question : Hank commits a violent crime and is on the run from the police.

Prior to committing the crime, he expressed to his friend, Joanna, that he needed a handgun to rob someone. Joanna, ever the loyal friend, helps him acquire the gun. After the crime is committed, Hank flees and asks his mother Edith for help in leaving the state. Edith allows Hank to take her vehicle and flee the state. Has Joanna or Edith committed crimes?

In the example from the practice question, both Joanna and Edith are likely guilty of committing the crime of aiding and abetting. Joanna could be charged of knowingly providing the perpetrator with a weapon that he intended to use to commit a robbery. Edith could be charged with knowingly assisting the perpetrator in fleeing from law enforcement after he commits the crime. Home Aiding and Abetting as a Crime. Written by Jason Gordon Updated at December 16th, Contact Us If you still have questions or prefer to get help directly from an agent, please submit a request.

Please fill out the contact form below and we will reply as soon as possible. What is Aiding and Abetting criminal activity? Aiding and abetting can be very similar to conspiracy. Instead, it is a legal principle that permits the prosecution of any person who is involved in a crime, even if that person did not directly commit the crime.

Accomplice liability can apply to anyone who:. In other words, if a defendant is accused of driving the getaway car during the commission of a jewelry store burglary, he will be tried on a charge of PC burglary , not 31 PC — even if he never stepped foot in the store. It is important to note that having minor knowledge about the crime or simply being present at the scene is generally not adequate to secure a successful conviction.

However, this assistance or participation can be spontaneous; there does need to be a prior agreement to commit the offense as is the case with conspiracy PC. The act of planning, encouraging, or assisting before, during, or after the crime can potentially fulfill the legal criteria under this statute.

As aiding and abetting is not a separate offense, if convicted, the defendant will face the penalties associated with the underlying criminal offense. For example, the potential criminal penalty for aiding and abetting the robbery of a convenience store by standing outside as a lookout is the same as it is for walking into the store and robbing the cashier. To obtain convictions for additional crimes, the prosecution must prove all of the following elements:. For example, if the defendant was aiding and abetting an armed robbery during which someone was killed, the defendant could face prosecution for both the robbery and the homicide, because the homicide would be considered a natural and probable consequence of an armed robbery.

Due to the potentially serious penalties for a conviction, it is critical to consult with an experienced and knowledgeable attorney who can provide an effective defense. In addition to defenses which are available for the underlying crime, there are several potential legal defenses against accusations of aiding and abetting. These include:. The content on this web site is attorney advertising, is for informational and educational purposes only, and is not to be construed as legal advice.

No attorney-client relationship is intended to be formed by this site, and no attorney-client relationship is to be formed without a signed retainer agreement between law firm and client. Accomplice liability can apply to anyone who: Helped plan the crime. Obtained equipment needed to commit the crime.

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The lack of such discussion may be explained by the fact that prior convictions for aiding and abetting entered or affirmed by the Appeals Chamber involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators.

For example, an individual accused of aiding and abetting may have been physically present during the preparation or commission of crimes committed by principal perpetrators and made a concurrent substantial contribution. Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction. In such circumstances, the Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific direction is required.

The factors indicating that acts of an accused aider and abettor are remote from the crimes of principal perpetrators will depend on the individual circumstances of each case. Such factors may include, but are not limited to, geographic distance. The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators.

If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces. However, as explained above, a sufficient link between the acts of an individual accused of aiding and abetting a crime and the crime he or she is charged with assisting must be established for the accused individual to incur criminal liability.

The Appeals Chamber recalls that specific direction may be addressed implicitly in the context of analysing substantial contribution. See also Rukundo Appeal Judgement, paras Trial Judgement, paras , , ; Limaj et al. Appeal Judgement, paras , Ngeze set up, manned, and supervised roadblocks, assisting in identification of Tutsi civilians who were then killed ; Muhimana Appeal Judgement, paras , , Muhimana personally encouraged principal perpetrators to rape Tutsi women ; Ndindabahizi Appeal Judgement, para.

See also Kayishema and Ruzindana Appeal Judgement, paras Appeal Judgement, paras finding that a six-month delay between an appellant being observed unloading weapons and a subsequent attack reduced the likelihood that these weapons were directed towards assisting in this attack.

Trial of Bruno Tesch and Two Others The Zyklon B Case , British Military Court Hamburg , in United Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals finding two defendants guilty of assisting killings of concentration camp detainees by providing poison gas, despite arguments that the gas was to be used for lawful purposes, after reviewing evidence that defendants arranged for S. Judge Liu dissents from the analysis in this sentence. The Appeals Chamber, Judge Liu dissenting, recalls that specific direction establishes a culpable link between an accused aider and abettor and relevant crimes.

Judge Liu dissents with respect to the specific direction requirement. The actus reus of aiding and abetting is constituted by acts or omissions that assist, further, or lend moral support to the perpetration of a specific crime, and which substantially contribute to the perpetration of the crime.

Rather, the Trial Chamber found that the encouragement provided by Ngirabatware was explicit in that, as an influential figure in Nyamyumba Commune, he distributed weapons to the Interahamwe while exhorting them to kill Tutsis. See also Kalimanzira Appeal Judgement, para. See Appeal Brief, para. Paragraph 16 of the Indictment explicitly alleged that Ngirabatware distributed weapons thereby aiding and abetting the killings of Tutsis.

The Appeals Chamber draws attention to the distinction between the mental element required for aiding and abetting and that required for co-perpetration. In the case of aiding and abetting, the requisite mental element is knowledge that the acts committed by the aider and abettor further the perpetration of a specific crime by the principal offender. In the case of co-perpetration, the intent to perpetrate the crime or to pursue the joint criminal purpose must be shown.

The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration.

See also para. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts. The Appeals Chamber concludes that the latter approach is the correct one in this case. The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime.

By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. By contrast, in the case of participation in a joint criminal enterprise, i. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons.

Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes.

Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise. See also Seromba Appeal Judgement, para. The Trial Chamber reasonably concluded that he substantially contributed to the massacre by encouraging Tutsis to seek refuge at Kabuye hill and by providing armed reinforcements to those trying to kill the Tutsis there.

It was on the basis of their testimonies that the Trial Chamber placed him at Kabuye hill on 23 April See also Muvunyi Appeal Judgement, para. See also Rukundo Appeal Judgement, para. The Appeals Chamber notes that the physical presence of an aider and abettor at or near the scene of the crime may be a relevant factor in cases of aiding and abetting by tacit approval. Nonetheless, the Appeals Chamber is not convinced that this error invalidates the Trial Judgement.

Judge Agius dissents in relation to this paragraph. The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry. The Appeals Chamber rejects the proposition that independent initiative, power, or discretion must be shown in order for the actus reus of aiding and abetting to be established.

It recalls its previous rejection of the contention that there exists a special requirement that a position of superior authority be established before liability for aiding and abetting under Article 7 1 of the Statute can be recognized. The Appeals Chamber considers that such a determination is to be made on a case by case basis. The Appeals Chamber recalls that while individual criminal responsibility generally requires the commission of a positive act, this is not an absolute requirement.

Appeal Judgement, paras , See also Nahimana et al. The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.

Likewise, the finding in the High Command case that a commander may be held criminally liable for failing to prevent the execution of an illegal order issued by his superiors, which has been passed down to his subordinates independent of him, indicates that legal authority to direct the actions of subordinates is not seen as an absolute requirement for the imposition of command responsibility.

Similarly, the finding in the Toyoda case, whereby the tribunal rejected the alleged importance of what it called the "theoretical" division between operational and administrative authority, may be seen as supporting the view that commanders are under an obligation to take action to prevent the commission of war crimes by troops under their control despite a lack of formal authority to do so. An officer with only operational and not administrative authority does not have formal authority to take administrative action to uphold discipline, yet in the view of the tribunal in the Toyoda case ; "[t]he responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own.

It is a principle of international humanitarian law that subordinates are bound not to obey manifestly illegal orders or orders that they knew were illegal. See Hostage Case United States v. Wilhelm List et al. XI, p. Military Commission, U. I, pp. VIII, pp. The fact that he obeyed such orders, as opposed to acting on his own initiative, does not merit mitigation of punishment. The Appeals Chamber further recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act but failed to do so.

The Appeals Chamber considers that aiding and abetting by omission necessarily requires that the accused had the ability to act, or in other words, that there were means available to the accused to fulfil this duty. Ntagerura et al. See also infra para. Where the Appeals Chamber also held that the Prosecution had not indicated which possibilities were open to Bagambiki to fulfil his duties under the Rwandan domestic law. At the outset, the Appeals Chamber recalls that to enter a conviction for aiding and abetting murder by omission, at a minimum, all the basic elements of aiding and abetting must be fulfilled.

If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter. The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal mens rea.

The mens rea and actus reus requirements for aiding and abetting by omission are the same as for aiding and abetting by a positive act. See also Ndindabahizi Appeal Judgement, para. This statement has to be read in context with the facts of that case. See also Strugar Appeal Judgement, para. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.

See also Ntawukulilyayo Appeal Judgement, para. See also Muvunyi Appeal Judgement of 29 August , para. See ibid. Only Witness CNJ estimated the number of perpetrators to be 10, See Trial Judgement, para. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime.

This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. The actus reus for aiding and abetting the crime of extermination is that the accused carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of that crime.

This support must have a substantial effect upon the perpetration of the crime. The requisite mens rea is knowledge that the acts performed by the aider and abettor assist the commission of the crime of extermination committed by the principal. See also Karera Appeal Judgement, para. It is firmly established in the jurisprudence of the Tribunal that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator.

Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided. The Appeals Chamber recalls that a person may be held criminally responsible for aiding and abetting by omission where he or she fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime.

Rather as recalled above, in order to fulfil the actus reus of aiding and abetting, it must be demonstrated that any such omission substantially contributed to the continued commission of forcible displacement. See also Ntagerura et al. The Appeals Chamber examined the issue of "specific direction", namely whether a chamber must determine whether the accused's alleged acts and omissions were specifically directed to assist the commission of the concerned crimes.

The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice. See also paras , , in which the Appeals Chamber examined the jurisprudence of the Tribunal and the ICTR as well as customary international law.

Landzo did not report these incidents to the relevant persons in the prison-camp. Furthermore, there is witness testimony that Mr. Landzo himself had, on occasion, beaten the deceased inside the Hangar. In addition, on the day in question, at the very least, Mr.

Landzo must have known why the other guards wished Simo Jovanovic called from the Hangar and he willingly lent his hand to the assailants. Therefore, even if his explanation that he did not personally hit the deceased were to be accepted, Esad Landzo cannot absolve himself of responsibility for his death as he clearly, at the very least, was in the position of facilitating the perpetration of the offence.

As has been previously discussed individual criminal responsibility arises where the acts of the accused contribute to, or have an effect on, the commission of the crime and these acts are performed in the knowledge that they will assist the principal in the commission of the criminal act.

Landzo himself stated that he had been posted outside of the Hangar to guard the detainees therein and there can be little doubt that he was aware of the intentions of Mr. By withdrawing the JNA guards, he at once enabled the TO and paramilitary forces to have direct and unrestrained physical access to the prisoners of war. This substantially assisted them to commit the murders that followed, in that it had an immediate effect on their ability to perpetrate the murders.

Further, by the removal of the restraint it encouraged the release of their emotions. In this respect, the Trial Chamber considers that the Accused were not physically present together with the Unit during these two operations. The Trial Chamber also recalls the evidence indicating the military character of the training at the Unit camps, see chapter 6.

As reviewed in chapter 6. Rather, such assistance may have been directed towards establishing and maintaining Serb control over these areas. As such, the majority, Judge Picard dissenting, is unable to conclude that the assistance rendered to the Unit by the Accused aided and abetted the crimes in Doboj and Bosanski Samac. The Trial Chamber recalls its findings in chapters 6.

Furthermore, in none of the incidents where members of these other groups committed crimes, did the Accused play any more specific role in providing assistance. Moreover, all of the crimes were committed in the context of military operations. Therefore, for the reasons set out above, the majority, Judge Picard dissenting, is unable to conclude that the Accused aided and abetted crimes perpetrated by the SDG, the SAO Krajina Police, the Skorpions, or other groups.

Protais Zigiranyirazo , Case No. The Chamber finds that by bringing L12 to the barn and being present throughout the beating by others, Haradin Bala did contribute to the commission of the crime substantially enough to regard his participation as aiding the offence committed by the direct perpetrators. In the circumstances, Haradin Bala must have become aware, at least at the time of the beating, that the assailants were committing a crime and of their state of mind.

Accordingly, he possessed the mens rea required for aiding and abetting […]. The Akayesu Trial Chamber Judgement emphasized that aiding and abetting , "which may appear to be synonymous, are indeed different. Nikola Sainovic, Case No. The Appeals Chamber notes that Lazarevic was neither charged with nor convicted of crimes committed in Kosovo in The Appeals Chamber therefore dismisses sub-ground 3 a of his appeal.

Trial Judgement, vol. See also ibid. Lazarevic further argues that the Trial Chamber misinterpreted the Grom 3 and Grom 4 plans which were issued for the defence of the country — not aimed at the civilian population — and were planned at a higher level than the Pristina Corps.

Lazarevic further submits that the Joint Command did not exist and did not represent any real command body, or at least that he was not aware of any such parallel command during the Kosovo conflict ibid. P, p. P, T. The Appeals Chamber recalls that the fact that an accused acted pursuant to superior orders does not relieve him of criminal responsibility and that, even where a lawful order exists to conduct an operation, an accused may still incur criminal responsibility for crimes committed in the course of that operation.

Accordingly, his argument that he was following orders and that his actions were thus not voluntary is inapposite and he has failed to show any error on the part of the Trial Chamber. Article 7 4 of the Statute. However, acting under superior orders might be considered in mitigation of sentence if the interests of justice so require see ibid. Whether the resort to the use of force is legitimate under international law is a question of jus ad bellum, which is distinct from whether the way in which that force was used was legal under international humanitarian law, i.

The rules of international humanitarian law do not require a military commander to refrain from defending his country but demand that he ensure that his conduct and that of his subordinates comply with established humanitarian principles. The Appeals Chambers finds that a reasonable trier of fact could have concluded that undertaking such tasks, with the awareness that the crimes of deportation and forcible transfer were being committed by the troops, amounts to rendering practical assistance to the perpetrators.

See supra, sub-section VIII. See also Lukic and Lukic Appeal Judgement, para. The Appeals Chamber further recalls that it has dismissed challenges of Sainovic, Pavkovic, and Lukic in relation to the existence and functioning of the Joint Command see supra, sub-section VII. P, Exh. The Trial Chamber found that such re-subordination did not occur in practice; rather, it found that the relationship between the VJ and the MUP remained that of cooperation and coordination.

The Appeals Chamber recalls its finding that the Trial Chamber erred in concluding that based on his knowledge of events by the end of , Lazarevic was aware that forcible displacement was likely to occur if he ordered the VJ to operate in Kosovo in The Appeals Chamber recalls in this respect that the principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises his actus reus Cf.

The mens rea of an aider and abettor must therefore exist at the time he provides assistance to the crime for which he is held responsible See, e. Appeal Judgement, para. See Trial Judgement, vol. P , In this context, the Appeals Chamber recalls that the Trial Chamber found that Lazarevic participated in the planning and execution of the joint operations conducted by the VJ and thereby substantially contributed to the commission of the crimes by the VJ as such conduct provided assistance in terms of soldiers on the ground to carry out the acts, organising and equipping VJ units, and the provision of weaponry, including tanks, to assist these acts.

See also supra, para. The Appeals Chamber therefore finds that Lazarevic has failed to demonstrate that the Trial Chamber erred in finding that he aided and abetted the crimes of deportation and forcible transfer through his involvement in the joint operations of the MUP and the VJ in Trial Judgement, paras. See Kanyabashi Response Brief, paras. See ibid. See Trial Judgement, para. The Trial Chamber did not make specific legal findings in this respect. See Prosecution Appeal Brief, para.

As an inchoate crime, direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time, and is punishable even if no act of genocide has resulted therefrom. Nzabonimana Appeal Judgement, para. Trial Judgement, para. Augustin Ngirabatware, Case No.

The Appeals Chamber notes that paragraph 41 of the Indictment alleges that, in February , Ngirabatware went to the Cyanika-Gisa roadblock, addressed the Interahamwe youths manning the roadblock and gave them and Honore Ndayamiyemenshi money "as encouragement and incitement for their work in capturing and killing Tutsis". Paragraph 49 of the Indictment alleges that, towards the end of February , Ngirabatware went to the same roadblock and addressed the youths who were present, including Ndayamiyemenshi, "incit[ing] them to kill members of the Tutsi population, by telling them that the Hutu leader was murdered the night before, and called on them to kill all the Tutsis".

The Appeals Chamber notes that in its analysis, the Trial Chamber discussed the evidence in relation to the allegations contained in paragraphs 41 and 49 of the Indictment together. On the basis of the evidence presented, the Trial Chamber found that Ngirabatware's instruction to "'kill Tutsis' objectively and unambiguously called for an act of violence" prohibited under Article 2 2 of the ICTR Statute. As to the allegation contained in paragraph 41 of the Indictment that Ngirabatware gave money at the roadblock, the Trial Chamber found that the Prosecution had failed to prove that weapons used in attacks against Tutsis were purchased with this money.

Charles Ghankay Taylor, Case No. In mid-June , Taylor advised Bockarie to recapture Kono so that the diamonds there would be used to purchase arms and ammunition, which resulted in the Fitti-Fatta attack in mid-June Trial Judgment, paras , , , Zlatko Aleksovski , Case No.

The Trial Chamber had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal. Subsequently, in the Tadic Judgement, the Appeals Chamber briefly considered the liability of one person for the acts of another person where the first person has been charged with aiding and abetting that other person in the commission of a crime.

It made the following points in relation to the aider and abettor: The citations of authority have been omitted. On the basis of the evidence set forth herein, the Chamber finds beyond a reasonable doubt that the Accused had reason to know and in fact knew that sexual violence was taking place on or near the premises of the bureau communal, and that women were being taken away from the bureau communal and sexually violated.

There is no evidence that the Accused took any measures to prevent acts of sexual violence or to punish the perpetrators of sexual violence. In fact there is evidence that the Accused ordered, instigated and otherwise aided and abetted sexual violence. The Accused watched two Interahamwe drag a woman to be raped between the bureau communal and the cultural center.

The two commune policemen in front of his office witnessed the rape but did nothing to prevent it. On the two occasions Witness JJ was brought to the cultural center of the bureau communal to be raped, she and the group of girls and women with her were taken past the Accused, on the way.

On the first occasion he was looking at them, and on the second occasion he was standing at the entrance to the cultural center. On this second occasion, he said, "Never ask me again what a Tutsi woman tastes like. When Witness OO and two other girls were apprehended by Interahamwe in flight from the bureau communal, the Interahamwe went to the Accused and told him that they were taking the girls away to sleep with them. The Accused said "take them.

He was laughing and happy to be watching and afterwards told the Interahamwe to take her away and said "you should first of all make sure that you sleep with this girl. The Tribunal finds, under Article 6 1 of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of i and in his presence in respect of ii and iii , and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:.

With regard to the acts alleged in paragraphs 12 A and 12 B of the Indictment, the Prosecutor has shown beyond a reasonable doubt that between 7 April and the end of June , numerous Tutsi who sought refuge at the Taba Bureau communal were frequently beaten by members of the Interahamwe on or near the premises of the Bureau communal. Some of them were killed. Numerous Tutsi women were forced to endure acts of sexual violence, mutilations and rape, often repeatedly, often publicly and often by more than one assailant.

Tutsi women were systematically raped, as one female victim testified to by saying that "each time that you met assailants, they raped you". Numerous incidents of such rape and sexual violence against Tutsi women occurred inside or near the Bureau communal. It has been proven that some communal policemen armed with guns and the accused himself were present while some of these rapes and sexual violence were being committed. Furthermore, it is proven that on several occasions, by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that "never ask me again what a Tutsi woman tastes like" In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed.

In the opinion of the Chamber, the above-mentioned acts with which Akayesu is charged indeed render him individually criminally responsible for having abetted in the preparation or execution of the killings of members of the Tutsi group and the infliction of serious bodily and mental harm on members of said group. The Chamber also finds that the Prosecution has proven beyond reasonable doubt that, by doing so, Kalimanzira both instigated and aided and abetted genocide.

By asking those men at the roadblock why they had not killed the Tutsis who were detained there, Kalimanzira prompted those men to kill the Tutsis; by providing the weapon with which at least some of those Tutsis were killed, Kalimanzira assisted in the perpetration of their murders.

Kalimanzira exhibited here, as elsewhere, an intent to destroy the Tutsi group see III. For these reasons, the Chamber finds Kalimanzira guilty beyond reasonable doubt of having instigated and aided and abetted genocide at a roadblock on the Butare-Gisagara road on or around 22 April Bearing in mind the previously articulated principles of notice, the Appeals Chamber considers that Kalimanzira could not have known, on the basis of the Indictment alone, that he was being charged in connection with the killings at the Butare-Gisagara roadblock.

Accordingly, the Appeals Chamber finds, as the Trial Chamber concluded, that paragraph 15 of the Indictment is defective. The Prosecution does not allege that the Accused was a military leader, nor does it base his criminal responsibility on Article 7 3 of the Statute of the Tribunal, applicable to a military or civilian superior.

Nevertheless, the Prosecution does attribute extensive authority to the Accused, which he also wielded in the conflict zones that he visited in order to boost the morale of his troops. The Prosecution submits that the Accused established a War Staff within his party that notably took care of logistical needs and the deployment of volunteers; that he was kept regularly informed of the activities of his troops; that he had the power to intervene with volunteers and to promote them, and that he had even decorated some of them by conferring upon them the rank of Vojvoda , which he himself held.

Ndayambaje had objected to the vagueness of paragraph 6. See Ndayambaje Closing Brief, paras. The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and that the Prosecution should therefore indicate precisely which form of responsibility is invoked based on the facts alleged.

Uwinkindi Appeal Decision, para. The Appeals Chamber observes that the Prosecution generally indicated in the charging section of the Indictment that the relevant counts were pursued pursuant to Article 6 1 of the Statute, without specifying any particular form of responsibility.

In paragraph 6. Although the Prosecution alleged in paragraph 6. In this context, the Appeals Chamber is not satisfied that the Indictment put Ndayambaje on sufficient notice of his particular acts or course of conduct which formed the basis for the charge of aiding and abetting the massacres invoked in paragraph 6.

The Appeals Chamber stresses that the relevant question is not whether Ndayambaje was given notice that he was charged with aiding and abetting crimes, but whether he was given notice that he was charged with aiding and abetting the killings alleged in paragraph 6. 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 Ndayambaje aided and abetted the massacres in which he was alleged to have participated in paragraph 6.

Ndayambaje also argues in general terms in his appeal brief that the Trial Chamber erred in convicting him as the Ndayambaje Indictment failed to plead his genocidal intent. See Ndayambaje Appeal Brief, para. See Ndayambaje Indictment, p. In defending against the allegation that he was not present during the days of the attacks, Ndayambaje testified and called witnesses to support his alibi for 20 and 21 April and to rebut the allegations of his presence which, together with his moral authority, is the basis of his conviction for aiding and abetting the killings at Mugombwa Church.

See also The Prosecutor v. Witness QAR, T. See Trial Judgement, paras. As discussed above, the Trial Chamber provided clear and explicit reasons in support of its finding that Ndahimana substantially contributed to the killings perpetrated at Nyange Church on 16 April Likewise, Ndahimana fails to demonstrate that it was unreasonable for the Trial Chamber to conclude, despite the absence of direct evidence on the matter, that he knew that the physical destruction of the church using a bulldozer would cause the deaths of the Tutsis who had sought refuge in the church.

The Chamber accepts that Ndayambaje spoke at the meeting, particularly given that its purpose was to inaugurate him as bourgmestre. The Trial Chamber convicted Kalimanzira for aiding and abetting genocide, in part, based on his presence at the 22 June inauguration of Elie Ndayambaje as bourgmestre of Muganza Commune, Butare Prefecture, during which Ndayambaje instigated the killing of Tutsis.

Kalimanzira submits that the Trial Chamber erred in convicting him in relation to this incident. In this respect, Kalimanzira contends that there is insufficient evidence demonstrating that killings in fact followed the ceremony. The Appeals Chamber recalls that "an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.

The Appeals Chamber, Judge Pocar dissenting, considers that it is unclear from either account whether the witnesses had first-hand knowledge of the killings or whether their evidence was hearsay. They refer to no particular incident, provide no approximate time-frame for the killings, and do not give any identifying information concerning the assailants or victims. In such circumstances, the Appeals Chamber finds, Judge Pocar dissenting, that it is impossible to determine with any reasonable certainty whether any killings in fact occurred following the meeting and, if so, the degree to which they were related to the ceremony.

In the Muvunyi case, the Appeals Chamber reversed a conviction for genocide because the evidence of the killings which underpinned the finding of guilt were based on second- or third-hand testimony that "contain[ed] no detail on any specific incident or the frequency of the attacks. No reasonable trier of fact could have concluded that Tutsis were killed as a result of the ceremony in circumstances where it heard no evidence about even a single incident. See also T. See also Seromba Appeal Judgement, para.

See also Br anin Appeal Judgement, para. See also Muvunyi Appeal Judgement, paras. The position of the accused has already been discussed. He did not personally rape Witness A, nor can he be considered, under the circumstances of this case, to be a co- perpetrator. The accused's presence and continued interrogation of Witness A encouraged Accused B and substantially contributed to the criminal acts committed by him.

On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7 1 and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B.

He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute. In finding Nsabimana responsible under Article 6 1 of the Statute for aiding and abetting by omission, the Trial Chamber found that, in his capacity as prefect, Nsabimana had the legal duty to provide assistance to people in danger, to ensure the tranquillity, public order, and security of people, and to protect civilians, including the wounded and sick, against acts or threats of violence.

Nsabimana submits that the Trial Chamber erred in law and in fact in finding that he had a legal duty to act, that his omission substantially assisted the perpetration of the crimes, and that he had the ability to act. Nsabimana Notice of Appeal, paras. See also Nsabimana Reply Brief, paras. Nsabimana submits that the Trial Chamber erred in law and in fact in finding that Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act.

The Prosecution responds that the Trial Chamber did not err in finding that Nsabimana had a legal duty to act. Prosecution Response Brief, paras. See also AT. Appeal Judgement, paras. The Prosecution asserts that the approach of the Appeals Chamber is rather that, irrespective of the source of the duty, the legal duty to act must be one whose breach gives rise to individual criminal responsibility.

The Appeals Chamber notes that Nsabimana seeks to substantiate his claim that the Trial Chamber erred in finding that Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act by arguing that criminal liability for failure to discharge a legal duty must derive from a duty imposed by criminal law and that the Trial Chamber failed to indicate the legal sanction provided under such texts.

The Appeals Chamber observes that Nsabimana almost exclusively develops his contentions by arguing that he lacked the material ability to act. These arguments are discussed in detail below. See infra, Section VI. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.

The Trial Chamber also relied on provisions of the laws and customs of war which it considered give rise to individual criminal responsibility in case of violation of such provisions. The Trial Chamber, relying on various sources of Rwandan law, observed that Nsabimana, in his capacity as prefect, had the power to request the intervention of the Rwandan army to restore public order and the ability to verbally request the intervention of the gendarmerie.

Nsabimana Appeal Brief, paras. Nsabimana stresses that apart from gendarmes, and to a certain extent soldiers, the prefect cannot requisition any other force to maintain peace and security. See Nsabimana Appeal Brief, para. Nsabimana similarly contends that he did not have the ability to discharge his duties pursuant to Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II of the Geneva Conventions.

Nsabimana recalls that the Nsabimana and Nteziryayo Indictment and some Prosecution witnesses alleged that the Rwandan Armed Forces were involved in crimes, and that several officers have been convicted in that regard. See Nsabimana Appeal Brief, paras. While Nsabimana acknowledges that Rwandan law empowered the prefect to requisition the Rwandan Armed Forces, he contends that this text was not sufficient for the Trial Chamber to conclude that he had the ability to requisition the Rwandan Armed Forces or post soldiers prior to June Furthermore, Nsabimana contends that his ability to post soldiers at the prefectoral office around 5 June does not necessarily mean that he had the ability to do so prior to that date.

Nsabimana Appeal Brief, para. See also Nsabimana Reply Brief, para. The Prosecution responds that the Trial Chamber correctly found that Nsabimana had the material ability to act, as demonstrated by his requisition of forces to protect refugees at the prefectoral office around 5 to 15 June It further points out that when Nsabimana orally requested military personal, his request was complied with and soldiers were posted at the prefectoral office for the purpose of offering protection.

See idem. The Appeals Chamber recalls that aiding and abetting by omission necessarily requires that the accused had the ability to act, such that there were means available to the accused to fulfil his duty. The Trial Chamber properly assessed whether a possibility was open to Nsabimana to call on the Rwandan army or the gendarmes to protect refugees and found that:.

Nsabimana in fact requisitioned forces around June Nsabimana appears to argue that his ability to obtain security forces in June resulted from the coincidental confluence of circumstances, rather than his ability to do so based on Rwandan law. Nsabimana avers that, according to Article 32 of the 11 March Law, the prefect may make a verbal requisition but must confirm this in writing.

Nsabimana submits, however, that his actions did not amount to a requisition because: i he used his own relationships, namely through Colonels Munyengango and Mugemanyi, to have soldiers from outside Butare posted at the prefectoral office; ii the Trial Chamber did not ascertain whether gendarmes or soldiers were posted; and iii no evidence was adduced to establish that the Rwandan army hierarchy had received a written requisition from Nsabimana. The Trial Chamber considered his efforts when it assessed mitigating factors in relation to his sentence.

Nyiramasuhuko et al. The evidence does not support an argument that Nsabimana committed, planned, ordered, or instigated the crimes perpetrated at the BPO. The Chamber will therefore address only whether he aided and abetted these crimes. An accused may be responsible for aiding and abetting in two different manners: 1 by positive acts including, providing tacit approval and encouragement; or 2 by omission, namely failing to discharge a legal duty to act.

Aiding and abetting by tacit approval and encouragement appears to require the presence of the accused at or near the scene of the crime. Here, it was not contested that Nsabimana was absent from the BPO at night when the attacks were perpetrated by Nyiramasuhuko, Ntahobali and Interahamwe. However, aiding and abetting by omission may serve as a basis for liability even where the accused is not present at or near the scene of the crime.

Pursuant to this form of responsibility, the failure to discharge a legal duty must assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect on the realisation of that crime. This implicitly requires that the accused had the ability to act, such that the means were available to the accused to fulfil his or her duty. The aider and abettor must know that his or her omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal perpetrator.

The Prosecution argues that Nsabimana is responsible for the abductions, rapes and killings at the BPO when those taking refuge there should have been under his protection. A prerequisite of criminal liability for aiding and abetting by omission is a legal duty to act. The Chamber notes that the Rwandan Penal Code imposes an obligation on every Rwandan citizen to provide assistance to persons in danger where it would not cause risk to oneself, and failure to do so is a criminal offence.

This obligation was considered by the Trial Chamber in Rutaganira at sentencing. Although the Rwandan Penal Code provides a justification for failure to act, namely where there is risk to oneself, the Rutaganira Trial Chamber held that "[v]iolence to physical well-being suffered by thousands of people during the said events affects the very fundamental interests of Humanity as a whole, and the protection of such interests cannot be counterbalanced by the mere personal risk that may have been faced by any person in a position of authority who failed to act in order to assist people whose lives were in danger.

The Appeals Chamber in the Ntagerura et al. In the circumstances of that case, the Appeals Chamber found that it was not necessary for it to decide the issue. The Chamber further notes that a legal duty to act may also be imposed by the laws and customs of war. However, Additional Protocol II to the Geneva Conventions contains similar obligations and is applicable to noninternational armed conflicts.

The Chamber notes that Article 7 of Additional Protocol II to the Geneva Conventions provides: "All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. The civilian population as such, as well as individual civilians, shall not be the object of attack.

Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. It was clear that the Tutsis taking refuge at the BPO were civilians and that many of them were sick and injured.

Although these provisions do not explicitly reference individual criminal liability, the Chamber considers they are applicable to the situation prevailing at the BPO from the end of April to mid-June The Chamber considers the criminalisation of individual conduct, includes, but is not limited to Article 3 common to the Geneva Conventions. This obligation clearly covers the Conventions in their entirety and this obligation thus includes common Article 3.

Therefore, these provisions impose a legal duty on the Accused to protect civilians, including the wounded and sick, against acts or threats of violence. The Chamber has found that Nyiramasuhuko, Ntahobali, Interahamwe and soldiers were responsible for raping numerous Tutsi women and for killing hundreds of Tutsi refugees abducted from the BPO from mid-May until mid-June At that time, soldiers were seconded to the BPO under the command of a female lieutenant. Despite this, Nsabimana failed to take any steps to prevent the ongoing attacks at the BPO for a significant period between the end of April and mid-June These means were available to Nsabimana to fulfil his duty and to forestall these harms, but he did nothing.

Nsabimana knew that those taking refuge at the BPO were Tutsis and on multiple occasions, they asked him directly for protection from the ongoing attacks. He knew that they were being abducted, raped and killed. Nsabimana admitted that he was aware of a plan to kill Tutsis, that Tutsis were being killed, and that the militia had been trained for this purpose.

Furthermore, the Chamber concludes that Nsabimana also knew that his failure to act assisted in the commission of the crimes. Nsabimana knew the attacks were occurring at night when he was not at the BPO and when there were likely to be fewer witnesses. Moreover, he testified that after he learned of the massacres, he would go home at night fearing that the refugees would not be at the BPO when he returned in the morning.

Yet, the perpetrators of these attacks were given free reign to repeatedly attack the BPO for a significant period between the end of April and mid-June Although Nsabimana posted gendarmes or soldiers at the BPO around June , he was responsible for aiding and abetting genocide for failing to discharge his duty to protect civilians until that time. Noting that Nsabimana was charged with this culpable omission, the Chamber finds him guilty of aiding and abetting genocide.

The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions.

It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June , while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April , date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group.

Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts. Yet, he took no action to prevent the continuance of the offences of cruel treatment that had been occurring. He had readily available to him more than adequate military police and other soldiers and adequate officers to ensure that the incidents of mistreatment that had been occurring during the afternoon were not repeated.

His omission, or failure to act, in these circumstances, constituted, in the view of the Chamber, aiding and abetting the acts of cruel treatment that continued during the afternoon. In the case of Borovcanin there is no evidence before the Trial Chamber of any particular acts on his part which may have constituted aiding and abetting the crimes committed at the Kravica Warehouse.

However, the Trial Chamber must also consider if his conduct can properly constitute aiding and abetting by omission. The Trial Chamber recalls the jurisprudence which provides for aiding and abetting by omission. Where a person fails to discharge a legal duty and by this failure he assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime, he may be held criminally responsible.

The person must have the ability to act and also must know the essential elements of the crime and that their omission assists the commission of the crime. The Trial Chamber recalls the jurisprudence that provides for aiding and abetting by omission. Specifically, where a person fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime, he or she may be held criminally responsible.

The person must have the ability to act and must know the essential elements of the crime and that his or her omission assists the commission of the crime. The contribution can consist of practical assistance, encouragement or moral support. Celebici Appeal Judgement, para Aiding or abetting may consist of an act or an omission and may take place before, during, or after the commission of a crime perpetrated by another and be geographically separated therefrom.

Examples are given in Tadic Trial Chamber Judgement, para. Several witnesses testified about the insults, threats, thefts and assaults detainees suffered in the presence of the accused during body searches on 15 and 16 April The Trial Chamber does not consider it proved that the accused ordered the crimes to be committed; it is however convinced that he aided and abetted in the commission of these acts.

In his capacity as prison warden he was clearly in charge of organising the body searches of detainees and of supervising them. By being present during the mistreatment, and yet not objecting to it notwithstanding its systematic nature and the authority he had over its perpetrators, the accused was necessarily aware that such tacit approval would be construed as a sign of his support and encouragement.

He thus contributed substantially to the mistreatment. Accordingly, the accused must be held responsible for aiding and abetting under Article 7 1 in the physical and mental abuse which detainees were subjected to during the body searches on 15 and 16 April The testimony of Witnesses L is consistent with that of Witness M.

According to them, the abuse they received during their detention was initiated by the accused who led the guards to their cell to beat them. The accused had even been present on occasion and ordered the guards to go on beating them when they stopped. The Trial Chamber is satisfied beyond reasonable doubt that the accused ordered or instigated and abetted the mistreatment of these witnesses. It is also similarly satisfied that the recurring brutality the two detainees were subsequently subjected to in the absence of the accused was aided and abetted by him.

Yet he did not oppose or repress it, as his position required. On the contrary, his silence could only be taken as a sign of his approval, given that he participated actively in the initial abuse of these two detainees; the accused could hardly have been unaware that his silence would amount to encouragement to the perpetrators. This silence evinces a culpable intent of aiding and abetting such acts as contemplated in Article 7 1.

Other examples include the following cases. In United States v. Kurt Goebell et al "Borkum Island case" , civilians brutalised and killed United States pilots who were paraded through the streets in Some of the members of the German guard who stood by as civilians injured and killed the pilots were convicted along with the commander who ordered the parading of the troops, the Burgomeister, and the four civilians who took part in the event In this case, the lack of action on the part of the guards and commander amounted to a sufficient degree of participation for the purposes of criminal liability.

Kurt Goebell et al. Milan Milutinovic et. However, these actions were insufficient to remedy the problem, as discussed above. Again, he did not take disciplinary measures against the 3rd Army Commander, despite the fact that crimes were still not being included in written reports up to the Supreme Command Staff from the 3rd Army. Milorad Krnojelac, Case No. The Prosecution also alleges that the Accused incurred criminal responsibility for aiding and abetting the imposition of the inhumane conditions constituting inhumane acts and cruel treatment of the non-Serb detainees at the KP Dom pursuant to Article 7 1 of the Statute.

The Trial Chamber is satisfied that the Accused was aware of the intent of the principal offenders and that he was aware that his failure to take any action as warden in relation to this knowledge contributed in a substantial way to the continued maintenance of these conditions constituting inhumane acts and cruel treatment by the principal offenders by giving encouragement to the principal offenders to maintain these living conditions.

With respect to aiding and abetting liability pursuant to Article 7 1 , the Trial Chamber is satisfied that the Accused knew of the beatings and that, by failing to take any appropriate measures which, as the warden, he was obliged to adopt, he encouraged these acts, at least in respect of his subordinates. Ndahimana, Case No.

The Majority recalls that an accused may be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to that crime. In cases where this category of Article 6 1 liability has been applied, the accused held a position of authority, was physically present on the scene of the crime and his non-intervention was seen as tacit approval and encouragement.

The encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene or in its vicinity as a "silent spectator" can be construed as tacitly approving or encouraging the crime. In any case, this encouragement or moral support must always substantially contribute to the commission of the crime. The Majority considers that Ndahimana could not ignore the fact that the victims of the attacks at Nyange parish were Tutsis.

For example, evidence relating to 14 April shows that the accused talked to the refugees and they told him that they had been attacked. In addition, the Majority found him criminally responsible for the acts committed by the communal police on 15 April as he had reason to know that they participated in the killings that occurred that day but did not punish them Chapter IV, Section 3.

The mens rea of the "approving spectator" may be deduced from the circumstances, and may include prior concomitant behaviour; for instance, allowing crimes to go. The "approving spectator" must have a significant status if his or her presence is to have the required effect on the perpetrators. The requisite mens rea in the more specific case of the "approving spectator" is that the accused knows that his presence would be seen by the perpetrator of the crime as encouragement or support.

Ndahimana must have known that his presence during the attack would have a significant encouraging effect on the assailants as he was a person of influence in the commune. In addition, his attendance at meetings held at Nyange parish on the days prior to 16 April , amidst the attacks and other circumstances prevailing at the parish and in his commune conveyed the impression of him as an "approving spectator. Ndahimana knew that the destruction of the church would necessarily cause the death of the Tutsi refugees.

In these circumstances, his presence on the scene of the crime substantially contributed to the attack that was launched, the destruction of the church and the death of the numerous refugees inside. Accordingly, the Majority finds beyond reasonable doubt that Ndahimana is responsible pursuant to Article 6 1 of the Statute for aiding and abetting the killing of Tutsi refugees in Nyange church on 16 April See also , Seromba TC Judgement, para. The refugees told Ndahimana that Ndungutse had led an attack against them and the accused responded that "he did not have powers", but he had asked the gendarmes to continue to protect the refugees.

While he accepted the decision of the communal authorities to destroy the church, spoke with a bulldozer driver and uttered words that encouraged him to destroy the church, even giving advice as to the weak side of the church, Athanase Seromba did not "supervise" or "direct" the massacre and he played no role in any separation of Tutsi refugees so that they could be killed.

In the circumstances, the Chamber is convinced that the only reasonable inference to be drawn is that Ndayambaje came to Mugombwa Church on 20 and 21 April to encourage the civilians in their attacks, and in this way substantially contributed to the perpetration of the attacks on the Tutsi refugees at Mugombwa Church.

C PRINT CHAR ARRAY AS BINARY OPTIONS

Appeal Judgement, paras. The Appeals Chamber, Judge Liu dissenting, thus reaffirms that no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly.

The Appeals Chamber discussed the circumstances in which specific direction must be explicitly considered:. At the outset, the Appeals Chamber, Judge Liu dissenting, recalls that the element of specific direction establishes a culpable link between assistance provided by an accused individual and the crimes of principal perpetrators. In this respect, the Appeals Chamber notes that previous appeal judgements have not conducted extensive analyses of specific direction.

The lack of such discussion may be explained by the fact that prior convictions for aiding and abetting entered or affirmed by the Appeals Chamber involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators.

For example, an individual accused of aiding and abetting may have been physically present during the preparation or commission of crimes committed by principal perpetrators and made a concurrent substantial contribution. Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction.

In such circumstances, the Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific direction is required. The factors indicating that acts of an accused aider and abettor are remote from the crimes of principal perpetrators will depend on the individual circumstances of each case.

Such factors may include, but are not limited to, geographic distance. The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators.

If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces. However, as explained above, a sufficient link between the acts of an individual accused of aiding and abetting a crime and the crime he or she is charged with assisting must be established for the accused individual to incur criminal liability.

The Appeals Chamber recalls that specific direction may be addressed implicitly in the context of analysing substantial contribution. See also Rukundo Appeal Judgement, paras Trial Judgement, paras , , ; Limaj et al. Appeal Judgement, paras , Ngeze set up, manned, and supervised roadblocks, assisting in identification of Tutsi civilians who were then killed ; Muhimana Appeal Judgement, paras , , Muhimana personally encouraged principal perpetrators to rape Tutsi women ; Ndindabahizi Appeal Judgement, para.

See also Kayishema and Ruzindana Appeal Judgement, paras Appeal Judgement, paras finding that a six-month delay between an appellant being observed unloading weapons and a subsequent attack reduced the likelihood that these weapons were directed towards assisting in this attack. Trial of Bruno Tesch and Two Others The Zyklon B Case , British Military Court Hamburg , in United Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals finding two defendants guilty of assisting killings of concentration camp detainees by providing poison gas, despite arguments that the gas was to be used for lawful purposes, after reviewing evidence that defendants arranged for S.

Judge Liu dissents from the analysis in this sentence. The Appeals Chamber, Judge Liu dissenting, recalls that specific direction establishes a culpable link between an accused aider and abettor and relevant crimes. Judge Liu dissents with respect to the specific direction requirement. The actus reus of aiding and abetting is constituted by acts or omissions that assist, further, or lend moral support to the perpetration of a specific crime, and which substantially contribute to the perpetration of the crime.

Rather, the Trial Chamber found that the encouragement provided by Ngirabatware was explicit in that, as an influential figure in Nyamyumba Commune, he distributed weapons to the Interahamwe while exhorting them to kill Tutsis. See also Kalimanzira Appeal Judgement, para.

See Appeal Brief, para. Paragraph 16 of the Indictment explicitly alleged that Ngirabatware distributed weapons thereby aiding and abetting the killings of Tutsis. The Appeals Chamber draws attention to the distinction between the mental element required for aiding and abetting and that required for co-perpetration. In the case of aiding and abetting, the requisite mental element is knowledge that the acts committed by the aider and abettor further the perpetration of a specific crime by the principal offender.

In the case of co-perpetration, the intent to perpetrate the crime or to pursue the joint criminal purpose must be shown. The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime.

He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration. See also para. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts. The Appeals Chamber concludes that the latter approach is the correct one in this case.

The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. By contrast, in the case of participation in a joint criminal enterprise, i.

The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime.

This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.

The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.

See also Seromba Appeal Judgement, para. The Trial Chamber reasonably concluded that he substantially contributed to the massacre by encouraging Tutsis to seek refuge at Kabuye hill and by providing armed reinforcements to those trying to kill the Tutsis there. It was on the basis of their testimonies that the Trial Chamber placed him at Kabuye hill on 23 April See also Muvunyi Appeal Judgement, para.

See also Rukundo Appeal Judgement, para. The Appeals Chamber notes that the physical presence of an aider and abettor at or near the scene of the crime may be a relevant factor in cases of aiding and abetting by tacit approval. Nonetheless, the Appeals Chamber is not convinced that this error invalidates the Trial Judgement. Judge Agius dissents in relation to this paragraph.

The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry. The Appeals Chamber rejects the proposition that independent initiative, power, or discretion must be shown in order for the actus reus of aiding and abetting to be established. It recalls its previous rejection of the contention that there exists a special requirement that a position of superior authority be established before liability for aiding and abetting under Article 7 1 of the Statute can be recognized.

The Appeals Chamber considers that such a determination is to be made on a case by case basis. The Appeals Chamber recalls that while individual criminal responsibility generally requires the commission of a positive act, this is not an absolute requirement. Appeal Judgement, paras , See also Nahimana et al. The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility.

Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law. Likewise, the finding in the High Command case that a commander may be held criminally liable for failing to prevent the execution of an illegal order issued by his superiors, which has been passed down to his subordinates independent of him, indicates that legal authority to direct the actions of subordinates is not seen as an absolute requirement for the imposition of command responsibility.

Similarly, the finding in the Toyoda case, whereby the tribunal rejected the alleged importance of what it called the "theoretical" division between operational and administrative authority, may be seen as supporting the view that commanders are under an obligation to take action to prevent the commission of war crimes by troops under their control despite a lack of formal authority to do so.

An officer with only operational and not administrative authority does not have formal authority to take administrative action to uphold discipline, yet in the view of the tribunal in the Toyoda case ; "[t]he responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own.

It is a principle of international humanitarian law that subordinates are bound not to obey manifestly illegal orders or orders that they knew were illegal. See Hostage Case United States v. Wilhelm List et al. XI, p. Military Commission, U.

I, pp. VIII, pp. The fact that he obeyed such orders, as opposed to acting on his own initiative, does not merit mitigation of punishment. The Appeals Chamber further recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act but failed to do so. The Appeals Chamber considers that aiding and abetting by omission necessarily requires that the accused had the ability to act, or in other words, that there were means available to the accused to fulfil this duty.

Ntagerura et al. See also infra para. Where the Appeals Chamber also held that the Prosecution had not indicated which possibilities were open to Bagambiki to fulfil his duties under the Rwandan domestic law.

At the outset, the Appeals Chamber recalls that to enter a conviction for aiding and abetting murder by omission, at a minimum, all the basic elements of aiding and abetting must be fulfilled. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter.

The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal mens rea. The mens rea and actus reus requirements for aiding and abetting by omission are the same as for aiding and abetting by a positive act. See also Ndindabahizi Appeal Judgement, para. This statement has to be read in context with the facts of that case.

See also Strugar Appeal Judgement, para. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.

See also Ntawukulilyayo Appeal Judgement, para. See also Muvunyi Appeal Judgement of 29 August , para. See ibid. Only Witness CNJ estimated the number of perpetrators to be 10, See Trial Judgement, para. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime.

This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. The actus reus for aiding and abetting the crime of extermination is that the accused carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of that crime.

This support must have a substantial effect upon the perpetration of the crime. The requisite mens rea is knowledge that the acts performed by the aider and abettor assist the commission of the crime of extermination committed by the principal. See also Karera Appeal Judgement, para. It is firmly established in the jurisprudence of the Tribunal that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator.

Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided. The Appeals Chamber recalls that a person may be held criminally responsible for aiding and abetting by omission where he or she fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime.

Evidence that the suspect brought the victim to a place where he would be beaten. Evidence the perpetrator orderering the withdrawal of prison guards. Evidence of the accused providing practical assistance. The perpetrator abetted the commission of the crime; OR. Evidence that the suspect pronounced words of encouragement. Evidence that the suspect assisted and interrogated a victim during the perpetration of the crime.

Evidence that the suspect had the capacity but did not stop the perpetrators from committing the crime. Evidence that the suspect did not report the crime. Evidence of the presence of a superior on the scene of the crime. The perpetrator otherwise assisted in the commission of the crime, including providing the means for its commission.

Evidence that the suspect provided the means needed for the commission of the crime. Evidence of facilitating transport for the perpetrators to the crime scene. Evidence of providing gas for the gas chambers. Evidence of the suspect receiving and passing detailed messages.

The Ad Hoc Tribunals jurisprudence established that participation through aiding, and abetting can take place before, during and after the commission of the crime. In Aleksovski Judgement, para. It can, for example, consist of providing the means to commit the crime or promising to perform certain acts once the crime has been committed, that is, behaviour which may in fact clearly constitute instigation or abetment of the perpetrators of the crime.

For that reason, as stated by the Trial Chamber seized of the Tadic case, "the act contributing to the commission and the act of commission itself can be geographically and temporally distanced". Tadic, para. However, there is uncertainty on whether participation can take place after the commission under the ICC Statute.

Indeed, Werle points out that "the ICC Statute does not expressly determine that abetting can lead to liability even after completion of the crime. A footnote to Art. If aiding, etc. The same reasoning was applied in Tadic , where "direct and substantial" was defined as: "[…] a contribution that in fact has an effect on the commission of the crime.

In the Furundzija judgment, the Tribunal departed slightly from that approach, stating that the assistance need not be tangible, as moral support or encouragement would be enough Furundzija , Trial Judgment, para. Furthermore, the tribunal held that: "[t]his clearly requires that the act of the accomplice has at least a substantial effect on the principal act. Following this meant that "having a role in a system without influence would not be enough to attract criminal responsibility" Furundzija , Trial Judgment, para.

In Kupreskic Appeal Judgment, para. This is particularly so considering that an act of aiding and abetting must have had a substantial effect on the commission of persecutory acts. There was no evidence that the "weapons", whatever they were, were ever used during the Ahmici attack. In sum, the Appeals Chamber finds that the Trial Chamber erred in using the evidence of Witness T that she saw Vlatko Kupreskic unloading weapons from his car in October in order to support an inference that he thereby assisted with the April attack on Ahmici.

In sum, according to Kai Ambos, "aiding and abetting encompasses any assistance, whether physical or psychological, which, however, had a substantial effect on the commission of the main crime. In other words, the limiting element is the "substantial effect" requirement. Thus, the question arises when an effect is "substantial". This cannot be decided by an abstract formula but only on a case basis taking into account modern theories of attribution See generally C.

I, 3 rd ed. Kai Ambos in Triffterer ed. The Prosecutor v. Momcilo Perisic , Case No. In particular, the Trial Chamber found that the VRS was independent from the VJ, and that the two armies were based in separate geographic regions.

In addition, the Trial Chamber did not refer to any evidence that Perisic was physically present when relevant criminal acts were planned or committed. In these circumstances, the Appeals Chamber, Judge Liu dissenting, further considers that an explicit analysis of specific direction would have been required in order to establish the necessary link between the aid Perisic provided with the crimes committed by principal perpetrators.

The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. However, the Appeals Chamber recalls again that the Tadic Appeal Judgement indicated that specific direction involves finding a closer link between acts of an accused aider and abettor and crimes committed by principal perpetrators than is necessary to support convictions under JCE.

The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.

After carefully reviewing the evidence on the record, the Appeals Chamber, Judge Liu dissenting, concludes that it has not been established beyond reasonable doubt that Perisic carried out "acts specifically directed to assist, encourage or lend moral support to the perpetration of [the] certain specific crime[s]" committed by the VRS. Prosecutor v. The terms "aiding" and "abetting" refer to distinct legal concepts.

See, e. Jean-Paul Akayesu, Case No. Article 6 1 declares criminally responsible a person who " Aiding and abetting, which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto.

The issue here is to whether the individual criminal responsibility provided for in Article 6 1 is incurred only where there was aiding and abetting at the same time. The Chamber is of the opinion that either aiding or abetting alone is sufficient to render the perpetrator criminally liable. In both instances, it is not necessary for the person aiding or abetting another to commit the offence to be present during the commission of the crime.

According to A. See also B. In the British case of Schonfeld , four of the ten accused were found guilty of being "concerned in the killing of" three Allied airmen, who had been found hiding in the home of a member of the Dutch resistance. All four claimed that their purpose in visiting the scene had been the investigation and arrest of the Allied airmen. One admitted to shooting the three airmen but claimed it was in self- defence; he was found guilty and sentenced to death.

The roles of the three others were less direct. One drove a car to the scene and was the first to enter the house. Another had obtained the original information, searched a different house for the airmen earlier and claimed to have stood guard at the back entrance to the house along with the fourth convicted person. All except one denied having fired any shots themselves. The court did not make clear the grounds on which it found these three to have been "concerned in the killing".

In doing so he gave an example of how an individual may participate without giving tangible assistance:. Again, in giving "additional confidence to his companions" the defendant facilitates the commission of the crime, and it is this which constitutes the actus reus of the offence. The prosecutor referred to Regulation 8 ii of the Royal Warrant concerning units or groups of men discussed above, and this may have been taken into consideration by the court.

In his reference to English substantive law on complicity, the Advocate General included the doctrine of "common design", whereby if a group sets out to commit a crime, all are equally guilty of the act committed by one of them in the pursuance of that criminal goal whether or not they materially contribute to the execution of the crime.

Schonfeld, p. V, Law Reports , p. Fatmir Limaj et. A further incident involving Haradin Bala relates to the mistreatment of L04 which theChamber has found constituted cruel treatment. As established earlier, L04 was then blindfolded, taken out of the room and beaten by individuals L04 believed to be Tamuli and Qerqiz.

Shala had an automatic weapon and was guarding the door. He, however, did not personally join in the beating of L The Chamber accepts the evidence of L04 on the circumstances of his mistreatment. It finds that Haradin Bala did not inflict physical suffering on L He did, however, provide practical assistance to the direct perpetrators of the offence of cruel treatment.

He better ensured there was no prospect of L04 escaping from the beating, or of the beating being seen or disrupted by third persons. In the circumstances, Haradin Bala could not have been ignorant of the intentions of the direct perpetrators. He certainly knew that a crime was being committed. Nonetheless, he remained and so he facilitated its commission. He is therefore responsible for aiding the crime of cruel treatment in respect of L In the Trial of Otto Sandrock and Three Others " Almelo case" , the defendants were charged with the commission of a war crime for killing a prisoner of war and a Dutch civilian.

This trial, which was conducted by the British Military Court, invoked Regulation 8 ii of the Royal Warrant of 14 June as amended by Royal Warrant of 4 August , which provided:. Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group, may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime.

The Judge-Advocate ruled that each of the defendants knew that they were going to the woods for the purpose of killing the victims and that "[i]f people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law.

I Law Reports 35, 43 In his statement pursuant to Rule 84 bis , his closing argument and his Final Brief, the Accused does not deny that crimes were committed in Vukovar, but asserts that he was not present at the crime scenes and that the SRS did not exist there. Callixte Kalimanzira , Case No. The Chamber finds that the allegations at paragraph 9 of the Indictment have been proven beyond reasonable doubt.

On Saturday, 23 April , Kalimanzira went to the Gisagara marketplace where thousands of Tutsi refugees had gathered to escape the killings, lootings, and house burnings in their areas. That same day, he stopped 13 refugees leaving Kabuye cellule on the Gisagara-Kabuye road and instructed them to go to back to Kabuye hill, promising that nothing would happen to them. His behaviour at the Mukabuga roadblock earlier that day demonstrates that he knew the Tutsis at Kabuye hill were being attacked and that he intended for them to be killed.

In these ways, he personally encouraged Tutsis to take refuge on the hill in order to facilitate their subsequent killings, a consequence which he was clearly aware of and motivated by. The impact of this finding will be discussed below. The Appeals Chamber has already found that the Appellant knew that the seven Muslim men were to be killed; that he walked armed with the group from the place where they had parked the cars to the Drina River; that he pointed his gun at the seven Muslim men; and that he stood behind the Muslim men with his gun together with the other three offenders shortly before the shooting started.

The Appeals Chamber believes that the only reasonable inference available on the totality of evidence is that the Appellant knew that his acts would assist the commission of the murders. The Trial Chamber is satisfied that the ARK Crisis Staff practically assisted the commission of crimes by the army, the police and paramilitary organisations by, inter alia , demanding the disarmament of non-Serbs through announcements and decisions setting deadlines concerning the surrender of weapons and providing for the eventual forceful confiscation of weapons.

These announcements and decisions not only facilitated the Bosnian Serb armed take-over of individual municipalities but on many occasions were used as the pretext for such take-overs. By his actions, Nchamihigo aided and abetted their killing.

The Chamber is satisfied that he did this because they were Tutsi and in furtherance of his intention to destroy the Tutsi ethnic group in whole or in part, and that he did this as part of a widespread or systematic attack on the Tutsi civilian population. The Appeals Chamber, Judges Pocar and Liu dissenting, finds that the Trial Chamber committed multiple errors in convicting the Appellant for the killing of the three Tutsi girls.

Second, it made an erroneous factual finding which was particularly prejudicial because it attributed incriminating statements to the Appellant which he did not in fact make. Dragoljub Kunarac et al. The Trial Chamber is also satisfied that Kunarac took these women to this house in the knowledge that they would be raped by soldiers during the night.

The Trial Chamber finds that Kunarac took FWS to one of the rooms of the house and forced her to have sexual intercourse in the knowledge that she did not consent. The fact that Kunarac took the girls to the house and left them to his men in the knowledge that they would rape them constituted an act of assistance which had a substantial effect on the acts of torture and rape later committed by his men.

He therefore aided and abetted in that torture and rape. As has been noted above, Esad Landzo admits that he took Simo Jovanovic out of Hangar 6 on the relevant evening, but denied that he joined the others in beating him. However, this version of events is not convincing. All of the witnesses testified that Mr. Landzo had taken Mr. Jovanovic out of the Hangar on previous occasions, during which he was also mistreated by other guards who knew him from his home village. It appears the Mr. Landzo did not report these incidents to the relevant persons in the prison-camp.

Furthermore, there is witness testimony that Mr. Landzo himself had, on occasion, beaten the deceased inside the Hangar. In addition, on the day in question, at the very least, Mr. Landzo must have known why the other guards wished Simo Jovanovic called from the Hangar and he willingly lent his hand to the assailants.

Therefore, even if his explanation that he did not personally hit the deceased were to be accepted, Esad Landzo cannot absolve himself of responsibility for his death as he clearly, at the very least, was in the position of facilitating the perpetration of the offence. As has been previously discussed individual criminal responsibility arises where the acts of the accused contribute to, or have an effect on, the commission of the crime and these acts are performed in the knowledge that they will assist the principal in the commission of the criminal act.

Landzo himself stated that he had been posted outside of the Hangar to guard the detainees therein and there can be little doubt that he was aware of the intentions of Mr. By withdrawing the JNA guards, he at once enabled the TO and paramilitary forces to have direct and unrestrained physical access to the prisoners of war. This substantially assisted them to commit the murders that followed, in that it had an immediate effect on their ability to perpetrate the murders. Further, by the removal of the restraint it encouraged the release of their emotions.

In this respect, the Trial Chamber considers that the Accused were not physically present together with the Unit during these two operations. The Trial Chamber also recalls the evidence indicating the military character of the training at the Unit camps, see chapter 6. As reviewed in chapter 6. Rather, such assistance may have been directed towards establishing and maintaining Serb control over these areas.

As such, the majority, Judge Picard dissenting, is unable to conclude that the assistance rendered to the Unit by the Accused aided and abetted the crimes in Doboj and Bosanski Samac. The Trial Chamber recalls its findings in chapters 6. Furthermore, in none of the incidents where members of these other groups committed crimes, did the Accused play any more specific role in providing assistance.

Moreover, all of the crimes were committed in the context of military operations. Therefore, for the reasons set out above, the majority, Judge Picard dissenting, is unable to conclude that the Accused aided and abetted crimes perpetrated by the SDG, the SAO Krajina Police, the Skorpions, or other groups.

Protais Zigiranyirazo , Case No. The Chamber finds that by bringing L12 to the barn and being present throughout the beating by others, Haradin Bala did contribute to the commission of the crime substantially enough to regard his participation as aiding the offence committed by the direct perpetrators. In the circumstances, Haradin Bala must have become aware, at least at the time of the beating, that the assailants were committing a crime and of their state of mind.

Accordingly, he possessed the mens rea required for aiding and abetting […]. The Akayesu Trial Chamber Judgement emphasized that aiding and abetting , "which may appear to be synonymous, are indeed different. Nikola Sainovic, Case No.

The Appeals Chamber notes that Lazarevic was neither charged with nor convicted of crimes committed in Kosovo in The Appeals Chamber therefore dismisses sub-ground 3 a of his appeal. Trial Judgement, vol. See also ibid. Lazarevic further argues that the Trial Chamber misinterpreted the Grom 3 and Grom 4 plans which were issued for the defence of the country — not aimed at the civilian population — and were planned at a higher level than the Pristina Corps.

Lazarevic further submits that the Joint Command did not exist and did not represent any real command body, or at least that he was not aware of any such parallel command during the Kosovo conflict ibid. P, p. P, T. The Appeals Chamber recalls that the fact that an accused acted pursuant to superior orders does not relieve him of criminal responsibility and that, even where a lawful order exists to conduct an operation, an accused may still incur criminal responsibility for crimes committed in the course of that operation.

Accordingly, his argument that he was following orders and that his actions were thus not voluntary is inapposite and he has failed to show any error on the part of the Trial Chamber. Article 7 4 of the Statute.

However, acting under superior orders might be considered in mitigation of sentence if the interests of justice so require see ibid. Whether the resort to the use of force is legitimate under international law is a question of jus ad bellum, which is distinct from whether the way in which that force was used was legal under international humanitarian law, i.

The rules of international humanitarian law do not require a military commander to refrain from defending his country but demand that he ensure that his conduct and that of his subordinates comply with established humanitarian principles. The Appeals Chambers finds that a reasonable trier of fact could have concluded that undertaking such tasks, with the awareness that the crimes of deportation and forcible transfer were being committed by the troops, amounts to rendering practical assistance to the perpetrators.

See supra, sub-section VIII. See also Lukic and Lukic Appeal Judgement, para. The Appeals Chamber further recalls that it has dismissed challenges of Sainovic, Pavkovic, and Lukic in relation to the existence and functioning of the Joint Command see supra, sub-section VII. P, Exh. The Trial Chamber found that such re-subordination did not occur in practice; rather, it found that the relationship between the VJ and the MUP remained that of cooperation and coordination.

The Appeals Chamber recalls its finding that the Trial Chamber erred in concluding that based on his knowledge of events by the end of , Lazarevic was aware that forcible displacement was likely to occur if he ordered the VJ to operate in Kosovo in The Appeals Chamber recalls in this respect that the principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises his actus reus Cf.

The mens rea of an aider and abettor must therefore exist at the time he provides assistance to the crime for which he is held responsible See, e. Appeal Judgement, para. See Trial Judgement, vol. P , In this context, the Appeals Chamber recalls that the Trial Chamber found that Lazarevic participated in the planning and execution of the joint operations conducted by the VJ and thereby substantially contributed to the commission of the crimes by the VJ as such conduct provided assistance in terms of soldiers on the ground to carry out the acts, organising and equipping VJ units, and the provision of weaponry, including tanks, to assist these acts.

See also supra, para. The Appeals Chamber therefore finds that Lazarevic has failed to demonstrate that the Trial Chamber erred in finding that he aided and abetted the crimes of deportation and forcible transfer through his involvement in the joint operations of the MUP and the VJ in Trial Judgement, paras. See Kanyabashi Response Brief, paras. See ibid.

See Trial Judgement, para. The Trial Chamber did not make specific legal findings in this respect. See Prosecution Appeal Brief, para. As an inchoate crime, direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time, and is punishable even if no act of genocide has resulted therefrom. Nzabonimana Appeal Judgement, para. Trial Judgement, para.

Augustin Ngirabatware, Case No. The Appeals Chamber notes that paragraph 41 of the Indictment alleges that, in February , Ngirabatware went to the Cyanika-Gisa roadblock, addressed the Interahamwe youths manning the roadblock and gave them and Honore Ndayamiyemenshi money "as encouragement and incitement for their work in capturing and killing Tutsis".

Paragraph 49 of the Indictment alleges that, towards the end of February , Ngirabatware went to the same roadblock and addressed the youths who were present, including Ndayamiyemenshi, "incit[ing] them to kill members of the Tutsi population, by telling them that the Hutu leader was murdered the night before, and called on them to kill all the Tutsis".

The Appeals Chamber notes that in its analysis, the Trial Chamber discussed the evidence in relation to the allegations contained in paragraphs 41 and 49 of the Indictment together. On the basis of the evidence presented, the Trial Chamber found that Ngirabatware's instruction to "'kill Tutsis' objectively and unambiguously called for an act of violence" prohibited under Article 2 2 of the ICTR Statute. As to the allegation contained in paragraph 41 of the Indictment that Ngirabatware gave money at the roadblock, the Trial Chamber found that the Prosecution had failed to prove that weapons used in attacks against Tutsis were purchased with this money.

Charles Ghankay Taylor, Case No. In mid-June , Taylor advised Bockarie to recapture Kono so that the diamonds there would be used to purchase arms and ammunition, which resulted in the Fitti-Fatta attack in mid-June Trial Judgment, paras , , , Zlatko Aleksovski , Case No. The Trial Chamber had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal.

Subsequently, in the Tadic Judgement, the Appeals Chamber briefly considered the liability of one person for the acts of another person where the first person has been charged with aiding and abetting that other person in the commission of a crime. It made the following points in relation to the aider and abettor: The citations of authority have been omitted.

On the basis of the evidence set forth herein, the Chamber finds beyond a reasonable doubt that the Accused had reason to know and in fact knew that sexual violence was taking place on or near the premises of the bureau communal, and that women were being taken away from the bureau communal and sexually violated. There is no evidence that the Accused took any measures to prevent acts of sexual violence or to punish the perpetrators of sexual violence. In fact there is evidence that the Accused ordered, instigated and otherwise aided and abetted sexual violence.

The Accused watched two Interahamwe drag a woman to be raped between the bureau communal and the cultural center. The two commune policemen in front of his office witnessed the rape but did nothing to prevent it. On the two occasions Witness JJ was brought to the cultural center of the bureau communal to be raped, she and the group of girls and women with her were taken past the Accused, on the way.

On the first occasion he was looking at them, and on the second occasion he was standing at the entrance to the cultural center. On this second occasion, he said, "Never ask me again what a Tutsi woman tastes like. When Witness OO and two other girls were apprehended by Interahamwe in flight from the bureau communal, the Interahamwe went to the Accused and told him that they were taking the girls away to sleep with them.

The Accused said "take them. He was laughing and happy to be watching and afterwards told the Interahamwe to take her away and said "you should first of all make sure that you sleep with this girl. The Tribunal finds, under Article 6 1 of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of i and in his presence in respect of ii and iii , and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:.

With regard to the acts alleged in paragraphs 12 A and 12 B of the Indictment, the Prosecutor has shown beyond a reasonable doubt that between 7 April and the end of June , numerous Tutsi who sought refuge at the Taba Bureau communal were frequently beaten by members of the Interahamwe on or near the premises of the Bureau communal. Some of them were killed.

Numerous Tutsi women were forced to endure acts of sexual violence, mutilations and rape, often repeatedly, often publicly and often by more than one assailant. Tutsi women were systematically raped, as one female victim testified to by saying that "each time that you met assailants, they raped you". Numerous incidents of such rape and sexual violence against Tutsi women occurred inside or near the Bureau communal. It has been proven that some communal policemen armed with guns and the accused himself were present while some of these rapes and sexual violence were being committed.

Furthermore, it is proven that on several occasions, by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that "never ask me again what a Tutsi woman tastes like" In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed.

In the opinion of the Chamber, the above-mentioned acts with which Akayesu is charged indeed render him individually criminally responsible for having abetted in the preparation or execution of the killings of members of the Tutsi group and the infliction of serious bodily and mental harm on members of said group.

The Chamber also finds that the Prosecution has proven beyond reasonable doubt that, by doing so, Kalimanzira both instigated and aided and abetted genocide. By asking those men at the roadblock why they had not killed the Tutsis who were detained there, Kalimanzira prompted those men to kill the Tutsis; by providing the weapon with which at least some of those Tutsis were killed, Kalimanzira assisted in the perpetration of their murders.

Kalimanzira exhibited here, as elsewhere, an intent to destroy the Tutsi group see III. For these reasons, the Chamber finds Kalimanzira guilty beyond reasonable doubt of having instigated and aided and abetted genocide at a roadblock on the Butare-Gisagara road on or around 22 April Bearing in mind the previously articulated principles of notice, the Appeals Chamber considers that Kalimanzira could not have known, on the basis of the Indictment alone, that he was being charged in connection with the killings at the Butare-Gisagara roadblock.

Accordingly, the Appeals Chamber finds, as the Trial Chamber concluded, that paragraph 15 of the Indictment is defective. The Prosecution does not allege that the Accused was a military leader, nor does it base his criminal responsibility on Article 7 3 of the Statute of the Tribunal, applicable to a military or civilian superior. Nevertheless, the Prosecution does attribute extensive authority to the Accused, which he also wielded in the conflict zones that he visited in order to boost the morale of his troops.

The Prosecution submits that the Accused established a War Staff within his party that notably took care of logistical needs and the deployment of volunteers; that he was kept regularly informed of the activities of his troops; that he had the power to intervene with volunteers and to promote them, and that he had even decorated some of them by conferring upon them the rank of Vojvoda , which he himself held.

Ndayambaje had objected to the vagueness of paragraph 6. See Ndayambaje Closing Brief, paras. The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and that the Prosecution should therefore indicate precisely which form of responsibility is invoked based on the facts alleged. Uwinkindi Appeal Decision, para. The Appeals Chamber observes that the Prosecution generally indicated in the charging section of the Indictment that the relevant counts were pursued pursuant to Article 6 1 of the Statute, without specifying any particular form of responsibility.

In paragraph 6. Although the Prosecution alleged in paragraph 6. In this context, the Appeals Chamber is not satisfied that the Indictment put Ndayambaje on sufficient notice of his particular acts or course of conduct which formed the basis for the charge of aiding and abetting the massacres invoked in paragraph 6. The Appeals Chamber stresses that the relevant question is not whether Ndayambaje was given notice that he was charged with aiding and abetting crimes, but whether he was given notice that he was charged with aiding and abetting the killings alleged in paragraph 6.

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 Ndayambaje aided and abetted the massacres in which he was alleged to have participated in paragraph 6. Ndayambaje also argues in general terms in his appeal brief that the Trial Chamber erred in convicting him as the Ndayambaje Indictment failed to plead his genocidal intent.

See Ndayambaje Appeal Brief, para. See Ndayambaje Indictment, p. In defending against the allegation that he was not present during the days of the attacks, Ndayambaje testified and called witnesses to support his alibi for 20 and 21 April and to rebut the allegations of his presence which, together with his moral authority, is the basis of his conviction for aiding and abetting the killings at Mugombwa Church.

See also The Prosecutor v. Witness QAR, T. See Trial Judgement, paras. As discussed above, the Trial Chamber provided clear and explicit reasons in support of its finding that Ndahimana substantially contributed to the killings perpetrated at Nyange Church on 16 April Likewise, Ndahimana fails to demonstrate that it was unreasonable for the Trial Chamber to conclude, despite the absence of direct evidence on the matter, that he knew that the physical destruction of the church using a bulldozer would cause the deaths of the Tutsis who had sought refuge in the church.

The Chamber accepts that Ndayambaje spoke at the meeting, particularly given that its purpose was to inaugurate him as bourgmestre. The Trial Chamber convicted Kalimanzira for aiding and abetting genocide, in part, based on his presence at the 22 June inauguration of Elie Ndayambaje as bourgmestre of Muganza Commune, Butare Prefecture, during which Ndayambaje instigated the killing of Tutsis.

Kalimanzira submits that the Trial Chamber erred in convicting him in relation to this incident. In this respect, Kalimanzira contends that there is insufficient evidence demonstrating that killings in fact followed the ceremony. The Appeals Chamber recalls that "an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.

The Appeals Chamber, Judge Pocar dissenting, considers that it is unclear from either account whether the witnesses had first-hand knowledge of the killings or whether their evidence was hearsay. They refer to no particular incident, provide no approximate time-frame for the killings, and do not give any identifying information concerning the assailants or victims. In such circumstances, the Appeals Chamber finds, Judge Pocar dissenting, that it is impossible to determine with any reasonable certainty whether any killings in fact occurred following the meeting and, if so, the degree to which they were related to the ceremony.

In the Muvunyi case, the Appeals Chamber reversed a conviction for genocide because the evidence of the killings which underpinned the finding of guilt were based on second- or third-hand testimony that "contain[ed] no detail on any specific incident or the frequency of the attacks. No reasonable trier of fact could have concluded that Tutsis were killed as a result of the ceremony in circumstances where it heard no evidence about even a single incident.

See also T. See also Seromba Appeal Judgement, para. See also Br anin Appeal Judgement, para. See also Muvunyi Appeal Judgement, paras. The position of the accused has already been discussed. He did not personally rape Witness A, nor can he be considered, under the circumstances of this case, to be a co- perpetrator.

The accused's presence and continued interrogation of Witness A encouraged Accused B and substantially contributed to the criminal acts committed by him. On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7 1 and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B.

He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute. In finding Nsabimana responsible under Article 6 1 of the Statute for aiding and abetting by omission, the Trial Chamber found that, in his capacity as prefect, Nsabimana had the legal duty to provide assistance to people in danger, to ensure the tranquillity, public order, and security of people, and to protect civilians, including the wounded and sick, against acts or threats of violence.

Nsabimana submits that the Trial Chamber erred in law and in fact in finding that he had a legal duty to act, that his omission substantially assisted the perpetration of the crimes, and that he had the ability to act. Nsabimana Notice of Appeal, paras. See also Nsabimana Reply Brief, paras.

Nsabimana submits that the Trial Chamber erred in law and in fact in finding that Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act. The Prosecution responds that the Trial Chamber did not err in finding that Nsabimana had a legal duty to act. Prosecution Response Brief, paras. See also AT. Appeal Judgement, paras. The Prosecution asserts that the approach of the Appeals Chamber is rather that, irrespective of the source of the duty, the legal duty to act must be one whose breach gives rise to individual criminal responsibility.

The Appeals Chamber notes that Nsabimana seeks to substantiate his claim that the Trial Chamber erred in finding that Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II imposed a legal duty upon him to act by arguing that criminal liability for failure to discharge a legal duty must derive from a duty imposed by criminal law and that the Trial Chamber failed to indicate the legal sanction provided under such texts.

The Appeals Chamber observes that Nsabimana almost exclusively develops his contentions by arguing that he lacked the material ability to act. These arguments are discussed in detail below. See infra, Section VI. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.

The Trial Chamber also relied on provisions of the laws and customs of war which it considered give rise to individual criminal responsibility in case of violation of such provisions. The Trial Chamber, relying on various sources of Rwandan law, observed that Nsabimana, in his capacity as prefect, had the power to request the intervention of the Rwandan army to restore public order and the ability to verbally request the intervention of the gendarmerie. Nsabimana Appeal Brief, paras.

Nsabimana stresses that apart from gendarmes, and to a certain extent soldiers, the prefect cannot requisition any other force to maintain peace and security. See Nsabimana Appeal Brief, para. Nsabimana similarly contends that he did not have the ability to discharge his duties pursuant to Article of the Rwandan Penal Code and Articles 7 and 13 of Additional Protocol II of the Geneva Conventions.

Nsabimana recalls that the Nsabimana and Nteziryayo Indictment and some Prosecution witnesses alleged that the Rwandan Armed Forces were involved in crimes, and that several officers have been convicted in that regard. See Nsabimana Appeal Brief, paras.

While Nsabimana acknowledges that Rwandan law empowered the prefect to requisition the Rwandan Armed Forces, he contends that this text was not sufficient for the Trial Chamber to conclude that he had the ability to requisition the Rwandan Armed Forces or post soldiers prior to June Furthermore, Nsabimana contends that his ability to post soldiers at the prefectoral office around 5 June does not necessarily mean that he had the ability to do so prior to that date.

Nsabimana Appeal Brief, para. See also Nsabimana Reply Brief, para.

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