Table of contents:
Element:
"573. To be held criminally responsible for ordering the commission of a crime, an accused must have instructed another person to engage in an act or an omission, and such instruction must have resulted in the commission of a crime. The accused must have held a position of authority over the other person, but it need not be formal and may even be temporary. However, there must be “proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order”. The order need not be in written or any particular form, nor must it be transmitted directly to the physical perpetrator. As with planning and instigating, it need not be shown that the crime would not have been perpetrated but for the accused’s order, but the order must have had “a direct and substantial effect on the commission of the illegal act”. The accused must intend to order a crime, or must be aware of the substantial likelihood that a crime would be committed in the execution of the act or omission ordered."
M.1.1. A principal crime was committed or attempted.
M.1.2. A principal crime was committed by a person or persons other than the perpetrator.
As the Blaškić Trial Chamber put it,
"in general, a person other than the person who planned, instigated or ordered is the one who perpetrated the actus reus of the offence. In so doing he must have acted in furtherance of a plan or order."[1]
Footnotes:
[1] ICTY, Blakić Trial Judgment 3 March 2000, para. 278.
