This article explores icty and ictr jurisprudence on central aspects of aiding and abetting liability, in particular with respect to holding high-ranking military and political figures accountable for international crimes in which they were not directly involved. A close look is taken at the Tribunals’ interpretation – both in law and fact – of the actus reus of aiding and abetting (specifically substantial contribution, encouragement and moral support as well as the temporary alignment between an act of assistance and knowledge that it will contribute to crimes), mens rea (including the threshold of intent, requisite specificity of knowledge regarding crimes and a comparison with relevant case law on superior responsibility) and, finally, the controversial notion of specific direction. It is suggested that the icty and ictr have at times over-expanded criminal liability.
The present article analyses the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) jurisprudence on omission liability – as a perpetrator or accomplice – for crimes actively committed by others. After explaining how the Tribunals have applied the concept in relation to specific modes of liability, an in-depth assessment of the case law is undertaken with respect to relevant duties to act, the material ability to behave in accordance with such duties, the link between a failure to do so and the commission of crimes, as well as the requisite mens rea. The intellectual foundations of this form of liability remain, to a large extent, unexplored and unexplained in the jurisprudence, which sometimes even appears to treat omissions and actions as equivalent. The article addresses the potentially far-reaching implications of the Tribunals’ findings for the future and explores some of the questions yet unanswered.
The ictr has found that “incitement to genocide”, as defined in Article 3(c) of the 1948 Genocide Convention, is punishable regardless of whether or not it was successful (see, e.g., Akayesu Trial Judgement, para. 562). International legal instruments on war crimes and crimes against humanity do not contain a similar incitement provision. Consequently, calls for the commission of such crimes will normally have to be considered from the perspective of instigation. For this mode of liability, the icty and ictr require a causal connection between the instigation and the actus reus of the underlying crime (see, e.g., Kvočka et al. Trial Judgement, para. 252; Kajelijeli Trial Judgement, para. 762). The proposed article would aim to address the distinction between incitement and instigation and analyse whether there is a legal basis in international law to conclude that urging the commission of war crimes or crimes against humanity can also be criminal without proof that this conduct led to crimes. The conclusions would be used to address, in particular, some of the factual findings in the Šešelj Trial Judgement.