508. It is alleged that the three Accused are responsible, under Article 7(1) of the Statute, for planning, instigating, ordering, committing, including through participation in a joint criminal enterprise, or otherwise aiding and abetting the planning, preparation, or execution of the crimes charged in the Indictment.1670 The Accused Fatmir Limaj and Isak Musliu are also alleged to be criminally responsible, pursuant to Article 7(3) of the Statute, as superiors of the KLA members operating in the Llapushnik/Lapusnik prison camp.
1. Responsibility under Article 7(1) of the Statute (a) Committing
509. “Committing” a crime “covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law”.1671 The Appeals Chamber has held that Article 7(1) “covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”1672 The actus reus required for committing a crime is that the accused participated, physically or otherwise directly, in the material elements of a crime provided for in the Statute, through positive acts or omissions,1673 whether individually or jointly with others. The requisite mens rea is that the accused acted with an intent to commit the crime, or with an awareness of the probability, in the sense of the substantial likelihood, that the crime would occur as a consequence of his conduct.
(b) Committing through participation in a joint criminal enterprise
510. Individual criminal responsibility arises under Article 7(1) of the Statute not only in respect of persons who perform the criminal act, but also, in certain circumstances, in respect of those who in some way make it possible for the perpetrator physically to carry out that act.1674 When a number of persons are involved in a common plan aimed at the commission of a crime, they can be convicted of participation in a joint criminal enterprise (“JCE”) in relation to that crime. Co-perpetration in the context of a joint criminal enterprise differs from aiding and abetting. 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
1670 Indictment, para 6.
1671 Krsti} Trial Judgement, para 601; Tadi} Appeals Judgement, para 188; Kunara} Trial Judgement, para 390.
1672 Tadi} Appeals Judgement, para 188.
1673 Kordi} Trial Judgement, para 376.
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 all the crimes committed in furtherance of that common purpose as a co-perpetrator.1675
511. Three types of joint criminal enterprise have been identified in the jurisprudence of the Tribunal. They all require, as to the actus reus, a plurality of persons, the existence of a common plan design or purpose, which amounts to or involves the commission of a crime provided for in the Statute, and participation of the accused in the common design. In the first type of joint criminal enterprise the accused intends to perpetrate a crime and this intent is shared by all co-perpetrators.
In the second type, embracing the so-called “concentration camp” cases, or systemic JCE, the accused has knowledge of the nature of a system of repression, in the enforcement of which he participates, and the intent to further the common concerted design to ill-treat the inmates of a concentration camp.1676 In such cases the requisite intent may also be able to be inferred from proved knowledge of the crimes being perpetrated in the camp and continued participation in the functioning of the camp, as well as from the position of authority held by an accused in the camp.1677 The third type concerns cases in which one of the participants commits a crime outside the common design. The mens rea in such cases is twofold. First, the accused must have the intention to take part in and contribute to the common criminal purpose. Second, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly takes the risk that the crime might occur by joining or continuing to participate in the enterprise.1678 The presence of the participant in the joint criminal enterprise at the time the crime is committed by the principal offender is not required.1679
512. The Appeals Chamber has said that responsibility for crimes committed beyond the common purpose of a JCE, but which were “a natural and foreseeable consequence thereof” (the third type of JCE), arises only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him. The Appeals Chamber pointed out that the question whether the crimes committed outside the common purpose
1674 Tadi} Appeals Judgement, para 192.
1675 Kvo~ka Appeals Judgement, para 90.
1676 Tadi} Appeals Judgement, paras 196; 202-203; 227-228.
1677 Kvo~ka Appeals Judgement, para 243.
1678 Tadi} Appeals Judgement, paras 204; 227-228; Kvo~ka Appeals Judgement, para 83.
1679 Krnojelac Appeals Judgement, para 81.
of the JCE were “a natural and foreseeable consequence thereof” must be assessed in relation to the knowledge of a particular accused.1680
(c) Planning
513. It has been said that “planning” implies that one or several persons plan or design the commission of a crime at both the preparatory and execution phases.1681 The actus reus of
“planning” requires that one or more persons plan or design the criminal conduct constituting one or more crimes provided for in the Statute, which are later perpetrated.1682 It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.1683 A person who plans an act or omission with an intent that the crime be committed, or with an awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute for planning.1684
(d) Instigating
514. In the jurisprudence of the Tribunal, the term “instigating” has been defined to mean
“prompting another to commit an offence.”1685 Both acts and omissions may constitute instigating, which covers express and implied conduct.1686 A nexus between the instigation and the perpetration must be demonstrated;1687 but it need not be shown that the crime would not have occurred without the accused’s involvement.1688 The actus reus is satisfied if it is shown that the conduct of the accused was a factor substantially contributing to the perpetrator’s conduct.1689 The requisite mens rea for “instigating” is that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that a crime would be committed in the execution of that instigation.1690
1680 Kvo~ka Appeals Judgement, para 86.
1681 Br|anin Trial Judgement, para 268; Krsti} Trial Judgement, para 601; Staki} Trial Judgement, para 443.
1682 Kordi} Appeals Judgement, para 26, citing Kordi} Trial Judgement, para 386.
1683 Kordi} Appeals Judgement, para 26.
1684 Kordi} Appeals Judgement, para 31.
1685 Krsti} Trial Judgement, para 601; Akayesu Trial Judgement, para 482; Bla{ki} Trial Judgement, para 280; Kordi}
Appeals Judgement, para 27; Kordi} Trial Judgement, para 387.
1686 Br|anin Trial Judgement, para 269; Bla{ki} Trial Judgement, para 280.
1687 Br|anin Trial Judgement, para 269; Bla{ki} Trial Judgement para 280.
1688 Kordi} Appeals Judgement, para 27.
1689 Kordi} Appeals Judgement, para 27.
1690 Kordi} Appeals Judgement, para 32.
(e) Ordering
515. The actus reus of “ordering” requires that a person in a position of authority instructs another person to commit an offence.1691 It is not necessary to demonstrate the existence of a formal superior-subordinate command structure or relationship between the orderer and the perpetrator; it is sufficient that the orderer possesses the authority, either de jure or de facto, to order the commission of an offence, or that his authority can be reasonably implied.1692 There is no requirement that the order be given in writing, or in any particular form, and the existence of the order may be proven through circumstantial evidence.1693 With regard to the mens rea, the accused must have either intended to bring about the commission of the crime, or have been aware of the substantial likelihood that the crime would be committed as a consequence of the execution or implementation of the order.1694
(f) Aiding and abetting
516. “Aiding and abetting” has been defined as the act of rendering practical assistance, encouragement or moral support, which has a substantial effect on the perpetration of a certain crime.1695 Strictly, “aiding” and “abetting” are not synonymous.1696 “Aiding” involves the provision of assistance; “abetting” need involve no more than encouraging, or being sympathetic to, the commission of a particular act.1697 These forms of liability have, however, been consistently considered together in the jurisprudence of the Tribunal.
517. The actus reus of aiding and abetting is that the support, encouragement or assistance of the aider and abettor has a substantial effect upon the perpetration of the crime.1698 There is no requirement of a causal relationship between the conduct of the aider or abettor and the commission of the crime, or proof that such conduct was a condition precedent to the commission of the crime.1699 An omission may, in the particular circumstances of a case, constitute the actus reus of aiding and abetting.1700 Further, the assistance may occur before, during or after the principal crime
1691 Kordi} Appeals Judgement, para 28, citing Kordi} Trial Judgement, para 388.
1692 Br|anin Trial Judgement, para 270.
1693 Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-A, Judgement, 19 September 2005, para 76, citing Kordi} Trial Judgement, para 388; Bla{ki} Trial Judgement, para 281.
1694 Bla{ki} Appeals Judgement, para 42; Kordi} Appeals Judgement, para 30; Br|anin Trial Judgement, para 270.
1695 Krsti} Trial Judgement, para 601; Aleksovski Appeals Judgement, para 162, citing Furund`ija Trial Judgement, para 249.
1696 Kvo~ka Trial Judgement, para 254, citing Akayesu Trial Judgement, para 484.
1697 Kvo~ka Trial Judgement, para 254, citing Akayesu Trial Judgement, para 484.
1698 Bla{ki} Appeals Judgement, para 48; Furund`ija Trial Judgement, para 249; Kunara} Trial Judgement, para 391.
1699 Bla{ki} Appeals Judgement, para 48.
1700 Bla{ki} Appeals Judgement, para 47. See also Krnojelac Trial Judgement, para 88; Kunarac Trial Judgement, para 391.
has been perpetrated.1701 While each case turns on its own facts, mere presence at the scene of a crime will not usually constitute aiding or abetting. However, where the presence bestows legitimacy on, or provides encouragement to, the actual perpetrator, that may be sufficient. In a particular case encouragement may be established by an evident sympathetic or approving attitude to the commission of the relevant act. For example, the presence of a superior may operate as an encouragement or support, in the relevant sense.1702
518. The mens rea required is knowledge that, by his or her conduct, the aider and abettor is assisting or facilitating the commission of the offence.1703 This awareness need not have been explicitly expressed. It may, of course, be inferred from all relevant circumstances.1704 The aider and abettor need not share the mens rea of the perpetrator, but he or she must be aware of the essential elements of the crime ultimately committed by the perpetrator,1705 and must be aware of the perpetrator’s state of mind.1706 This is not to say that the aider and abettor must be aware of the specific crime that will be committed by the perpetrator. If the aider and abettor is aware that one of a number of crimes will probably be committed by the perpetrator, and one of those crimes is in fact committed, then he has intended to assist or facilitate the commission of that crime, and is guilty as an aider and abettor.1707
2. Responsibility under Article 7(3) of the Statute 519. Article 7(3) of the Statute provides:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is an established principle of international customary law,1708 applicable to both international and internal armed conflicts.1709
1701 Br|anin Trial Judgement, para 271; Bla{ki} Appeals Judgement, para 48; Krnojelac Trial Judgement, para 88.
1702 Br|anin Trial Judgement, para 271.
1703 Furund`ija Trial Judgement, para 249; Tadi} Appeals Judgement, para 229; Bla{ki} Appeals Judgement, para 49;
Vasiljevi} Appeals Judgement, para 102.
1704 ^elebi}i Trial Judgement, para 328; Tadi} Trial Judgement, para 676.
1705 Aleksovski Appeals Judgement, para 162; Krnojelac Trial Judgement, para 90: “The aider and abettor must be aware of the essential elements of the crime committed by the principal offender, including the principal offender’s mens rea. However, the aider and abettor need not share the mens rea of the principal offender.”
1706 Br|anin Trial Judgement, para 273; Aleksovski Appeals Judgement, para 162.
1707 Bla{ki} Appeals Judgement, para 50, citing Bla{ki} Trial Judgement, para 287; Furund`ija Trial Judgement, para 246; Br|anin Trial Judgement, para 272.
1708 ^elebi}i Appeals Judgement, para 195; Strugar Trial Judgement, para 357.
520. It has been held that three elements need to be satisfied in order to invoke individual criminal responsibility under Article 7(3):
(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.1710
(a) Superior-subordinate relationship
521. The superior-subordinate relationship lies in the very heart of the doctrine of a commander’s liability for the crimes committed by his subordinates. It is the position of command over and the power to control the acts of the perpetrator which forms the legal basis for the superior’s duty to act, and for his corollary liability for a failure to do so.1711
522. The existence of the position of command may arise from the formal or de jure status of a superior, or from the existence of de facto powers of control. It derives essentially from the “actual possession or non-possession of powers of control over the actions of subordinates.”1712 In determining the degree of control to be exercised by the superior over the subordinate, the Appeals Chamber endorsed the effective control standard, as the material ability to prevent or punish criminal conduct.1713 The existence of a superior-subordinate relationship does “not […] import a requirement of direct or formal subordination”.1714 Likewise, there is no requirement that the relationship between the superior and the subordinate be permanent in nature.1715 Further, the Chamber recalls that “the test of effective control […] implies that more than one person may be held responsible for the same crime committed by a subordinate.”1716
1709 For application of the principle of command responsibility to internal armed conflicts, see Prosecutor v Had`ihasanovi} et al., Case No IT-01-47-AR72, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para 31.
1710 ^elebi}i Trial Judgement, para 346. See also Kordi} Trial Judgement, para 401; Bla{ki} Trial Judgement, para 294; Kov~ka Trial Judgement, para 314; Strugar Trial Judgement, para 358.
1711 Aleksovski Appeals Judgement, para 76; Strugar Trial Judgement, para 359.
1712 ^elebi}i Trial Judgement, para 370; Strugar Trial Judgement, para 362.
1713 ^elebi}i Appeals Judgement, para 256. The Appeals Chamber has rejected the argument that a superior may be held criminally liable on the basis of his powers of influence as it held that “substantial influence as a means of control in any sense which falls short of possession of effective control over subordinates” (i.e. possession of material ability to prevent or to punish) has no standing of rule of customary law, especially such that may trigger criminal liability. See ^elebi}i Appeals Judgement, para 266.
1714 ^elebi}i Appeals Judgement, para 303.
1715 Strugar Trial Judgement, para 362.
1716 Bla{ki} Trial Judgement, para 303, referring to Aleksovski Trial Judgement, para 106; see also, Strugar Trial Judgement, para 365.
(b) Mental element: the superior knew or had reason to know
523. For a superior to be held responsible under Article 7(3) of the Statue for crimes committed by a subordinate, it must be established that he knew or had reason to know that the subordinate was about to commit or had committed such crimes.
524. While a superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed, it may be established by circumstantial evidence,1717 including the number, type and scope of illegal acts, time during which the illegal acts occurred, number and types of troops and logistics involved, geographical location, whether the occurrence of the acts is widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers and staff involved, and location of the commander at the time.1718
525. In determining whether a superior “had reason to know” that his subordinates were committing or about to commit a crime, it must be shown that specific information was in fact available to him which would have provided notice of offences committed or about to be committed by his subordinates.1719 The information must in fact be available to the superior who may not be held liable for failing to acquire such information in the first place.1720 However the information in fact available need not be such that, by itself, it was sufficient to compel the conclusion of the existence of such crimes.1721 It is sufficient that the superior be in possession of sufficient information, even general in nature, to be on notice of the likelihood of illegal acts by his subordinates, i.e., so as to justify further inquiry in order to ascertain whether such acts were indeed being or about to be committed.1722
(c) Necessary and reasonable measures
526. The question of whether a superior has failed to take the necessary and reasonable measures to prevent the commission of a crime or punish the perpetrators thereof is connected to his possession of effective control. A superior will be held responsible if he failed to take such measures that are within his material ability. Whether the superior had explicit legal capacity to do so is immaterial provided that he had the material ability to act.1723
1717 ^elebi}i Trial Judgement, para 386; Strugar Trial Judgement, para 368.
1718 ^elebi}i Trial Judgement, para 386. See also Kordi} Trial Judgement, para 427; Bla{ki} Trial Judgement, para 307; Strugar Trial Judgement, para 368.
1719 ^elebi}i Trial Judgement, para 393; Strugar Trial Judgement, para 369.
1720 Bla{ki} Appeals Judgement, paras 62-63, ^elebi}i Appeals Judgement, para 226.
1721 ^elebi}i Trial Judgement, para 393; Strugar Trial Judgement para 369.
1722 ^elebi}i Trial Judgement, para 393; Kordi} Trial Judgement, para 437; Strugar Trial Judgement, para 370.
1723 ^elebi}i Trial Judgement, para 395 (footnotes omitted). See also Kordi} Trial Judgement, para 443; Strugar Trial Judgement, para 372.
527. Under Article 7(3), the superior has a duty both to prevent the commission of the offence and punish the perpetrators. These are not alternative obligations.1724 The duty to prevent arises
527. Under Article 7(3), the superior has a duty both to prevent the commission of the offence and punish the perpetrators. These are not alternative obligations.1724 The duty to prevent arises