M.5. The perpetrator was aware that the crime was attempted or committed in execution of or otherwise in furtherance of an order issued by the perpetrator

M.5. The perpetrator was aware that the crime was attempted or committed in execution of or otherwise in furtherance of an order issued by the perpetrator

The Blaškić Appeals Chamber held that:

"a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order", has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering."[1]

And it held, thus reversing the Trial Chamber judgment, that:

"[t]he knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law"."[2]

The Akayesu Trial Chamber held that:

"intent can be inferred from a certain number of facts, as concerns genocide, crimes against humanity and war crimes, for instance, from their massive and/or systematic nature or their atrocity, to be considered infra in the judgment, in the Tribunal's findings on the law applicable to each of the three crimes which constitute its ratione materiae jurisdiction"."[3]

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."