Table of contents:
Element:
"572. Criminal liability for instigation would be incurred when an accused prompts another person to commit an offence, which is actually committed. The prompt may be either express or implied, it need not be direct or public, and it may consist of either an act or an omission. The accused’s prompting must have been a factor “substantially contributing to the conduct of another person committing the crime”, but the Prosecution need not prove that the crime would not have been committed but for such prompting, or that the accused had effective control or any other sort of authority over the perpetrator. The accused must intend to instigate another person to commit a crime, or at a minimum, he must be aware of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated."
"2044. Conspiracy to commit genocide is “an agreement between two or more persons to commit the crime of genocide”. As an inchoate crime, conspiracy to commit genocide is punishable even if the crime of genocide has not been committed."
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
The Blaškić Trial Chamber stated that:
"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]
The Blaškić Trial Chamber claimed that:
"what is important is the commander’s mens rea, not that of the subordinate executing the order"."[2]
Footnotes:
[1] ICTY, Blakić Trial Judgment 3 March 2000, para. 278.
[2] ICTY, Blakić Trial Judgment 3 March 2000, para. 282.
