M.2. The perpetrator gave an express or implied order to a subordinate or other person over whom the perpetrator was in a position of authority.

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 231: 

"231. Individual criminal responsibility may be incurred when an individual in a position of authority orders a person to commit an offence. It is not necessary to demonstrate the existence of a formal superior-subordinate relationship between the individual giving the order and the perpetrator of the crime. It is sufficient to demonstrate that the individual in question was vested with the authority – de jure or de facto – necessary to enable him to give orders, even if that authority was temporary. Giving an order requires a positive act and thus may not be committed by omission. However, it is not a requirement that the order be issued directly, in writing, or that it be given any particular form, which is the reason that it may be proven through circumstantial evidence."

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, para. 976:

"976. The Appeals Chamber recalls that a person in a position of authority may incur responsibility under Article 6(1) of the Statute for ordering another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act. Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order. Ordering with such awareness has to be regarded as accepting that crime."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 573:

"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.2.1. The perpetrator gave an express or implied order

According to the Krstić Trial Chamber:

"‘Ordering’ entails a person in a position of authority using that position to convince another to commit an offence."[1]

Nevertheless, according to the Akayesu Trial Chamber it is not a form of ordering but of aiding and abetting, when an accused:

"The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted […] acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence 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"[2]

Moreover, the Stakić Trial Chamber stated that:

"an additional conviction for ordering a particular crime is not appropriate where the accused is found to have committed the same crime"."[3]

The Appeals Chamber in Bagosora stated that:

"ordering under Article 6(1) of the Statute requires that a person in a position of authority instruct another person to commit an offence. As previously held, ‘the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of ‘instructing’, pivotal to the understanding of the question of ‘ordering’, requires ‘a positive action by the person in a position of authority’"."[4]

M.2.2. The order was given to a subordinate or other person over whom the suspect was in a position of authority

In the Gbagbo Decision on the Confirmation of Charges, the Trial Chamber held that:

"242. Article 25(3)(b) of the Statute provides for individual criminal responsibility if a person "orders, solicits or induces the commission" of a crime within the jurisdiction of the court which in fact occurs or is attempted.

243. The Chamber is of the view that "ordering", "soliciting" and "inducing" in essence fall into a broader category of "instigating" or "prompting another person to commit a crime", in the sense that they refer to a conduct by which a person is influenced by another to commit a crime. Therefore, the Chamber will consider the elements of "ordering", as previously applied by the Court, as equally applicable to "soliciting" and "inducing", with the exception of the requirement of a position of authority, which is particular to "ordering" and is not a necessary element of "soliciting" or "inducing"."[34]

The Blaškić Trial Chamber stated that:

"The Akayesu Trial Chamber was of the Opinion that ordering implies a superior-subordinate relationship between the person giving the order and the one executing it. In other words, the person in a position of authority uses it to convince another to commit an offence. […] It is not necessary that an order be given in writing or in any particular form. It can be explicit or implicit. The fact that an order was given can be proved through circumstantial evidence."[5]

The Blaškić Trial Chamber stated that:

"[…] an order does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence."[6]

The Kupreškić Trial Chamber held that:

"[…] from his position as a company commander of the Military Police and commander of the Jokers, it can be safely inferred that he passed on the orders of his superiors to his men, and his presence on the scene of the attack also served as an added encouragement for his subordinates to abide by the orders they had received."[7]

"He also passed on orders from his superiors to his subordinates, which amounted to the reissuing of the orders that were illegal in the circumstances."[8]

Moreover the Court stated in the Mucić et al. ("Čelebići") Trial Judgment and the Mucić et al. ("Čelebići") Appeal Judgment that:

"the reasons for which are set out below, that persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so. [...] that individuals in positions of authority, whether civilian or within military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility."[9]

But the Kordić Trial Chamber held that:

"no formal superior-subordinate relationship is required for a finding of ‘ordering’ so long as it is demonstrated that the accused possessed the authority to order"."[10]

The Mrkšić Trial Chamber, however, stated that:

"[c]losely related to ‘instigating’, this form of liability additionally requires that the accused possess the authority, either de jure or de facto, to order the commission of an offence."[11]

The Kupreškić Appeals Chamber has expressly upheld a Trial Chamber’s finding that an accused had ordered crimes on the basis of his position as a commander:

"the Appeals Chamber can find no error in the Trial Chamber’s conclusion that Santić passed on orders from his superiors to his subordinates regarding the 16 April 1993 attack. Having found that Santić was a commander of troops involved in the assault, it was a reasonable inference that his role encompassed such actions."[12]

The Kupreškić Trial Chamber, while evaluating the appropriate sentence to be imposed to the accused, held that:

"Concerning the conviction on the persecution count, Vladimir ?antić’s role was most serious, since he was a commander, who assisted in the strategic planning of the whole attack. He also passed on orders from his superiors to his subordinates, which amounted to the reissuing of the orders that were illegal in the circumstances. This role renders particularly grave his participation in the offences committed".[14]In Gotovina et al., the Trial Chamber found that:

"faced with a situation where many crimes seemed to have been committed, it was incumbent on Gotovina to adjust his focus and priorities towards ensuring that crimes were followed up. This could have taken the form of contacting relevant people and seeking their assistance, making public statements, or using available capacities temporarily more focused on other tasks. In relation to crimes against Serbs, Gotovina failed to take measures to have subordinates punished for crimes committed. By failing to insist on any follow-up in relation to perpetrators of crimes, Gotovina also failed to prevent future crimes."[13]

The Trial Chamber in Bizimungu et al. stated that:

"Ordering" requires that a person in a position of authority instruct another to commit an offence. Unlike superior responsibility under Article 6(3), "ordering" does not require a superior-subordinate relationship between the accused and the perpetrator of the crime. The accused will incur responsibility if the Prosecution proves that he holds a position of authority, which may be informal or of a purely temporary nature, and that he used that authority to compel another to commit a crime."[14]

The Trial Chamber in Gatete found that:

"Gatete’s prominent personality and general authority, as well as his personal presence, would have had a similar encouraging effect on Conseiller Bizimungu, who was later seen with Interahamwe going towards Mumpara from where an attack was subsequently launched.729 The Chamber, thus, considers that Gatete’s actions substantially and significantly contributed to the killings. It further finds that Gatete’s position of authority and his express orders to kill Tutsis and to "work relentlessly" would have compelled the Interahamwe to kill."[15]

In Musema, the Trial Chamber stated that:

"the nature of the authority wielded by an individual affects the assessment of that individual’s role in planning, instigating, ordering, committing or otherwise aiding and abetting the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the Statute. In particular, the presence of an authority figure at an event could amount to acquiescence in the event or support thereof, and, in the perception of the perpetrators, legitimize the said event."[16]

In Seromba, the Appeals Chamber found that:

"[As stated in Kamuhanda,] ‘[t]o be held responsible under Article 6(1) of the Statute for ordering a crime, on the contrary, it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial effect on the commission of the illegal act.’ In light of the above, the Appeals Chamber finds that the Trial Chamber erred in law when it considered effective control as an element necessary to prove that Athanase Seromba participated in the crimes by "ordering", within the meaning of Article 6(1) of the Statute."[17]

In Setako, the Appeals Chamber stated that to find an individual liable for ordering under Article 6(1) of the Statute:

"[i]t is sufficient that there is proof of a position on the part of the accused that would compel another person to commit a crime."[18]