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."
"2047. In addition to the actus reus, conspiracy to commit genocide requires that an accused possess the requisite mens rea. The members of a conspiracy must be “aware of its existence, their participation in it, and its role in furtherance of their common purpose [to commit genocide]”. The accused must also possess the mens rea for genocide, that is the specific intent to destroy in whole or in part a national, ethnic, racial or religious group as such. An in-depth analysis of the mens rea for genocide can be found below, in the Chamber’s legal findings for genocide."
M.3.1. The perpetrator meant to engage in the conduct;
In Akayesu, that Trial Chamber stated that:
"[…] the Chamber is of the opinion that the direct element of incitement should be viewed in the light of its cultural and linguistic content. Indeed, a particular speech may be perceived as ‘direct’ in one country, and not so in another, depending on the audience. The Chamber further recalls that incitement may be direct, and nonetheless implicit."[1]
M.3.2. The perpetrator meant to cause the consequence of crime; OR
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 586:
''586. As regards Tolimir’s submission that the Trial Chamber erred by inferring his genocidal intent with regard to the crime of conspiracy to commit genocide on a wider factual basis than merely the agreement to kill the able-bodied men from Srebrenica, the Appeals Chamber recalls that – as correctly noted by the Trial Chamber – the mens rea for the two crimes of genocide and conspiracy to commit genocide is the same and that genocidal intent may be inferred from the totality of evidence. The Appeals Chamber therefore finds that the Trial Chamber did not err in relying on its findings as to the mens rea for the crime of genocide to establish the mens rea required for the conspiracy to commit genocide.''
M.3.3. The perpetrator was aware that the consequence will occur in the ordinary course of events.
M.3.4. The perpetrator was aware of the circumstance of the crime.
The Blaškić Trial Chamber stated that:
"As stated earlier in this Judgement, in the case of instigation, proof is required of a causal connection between the instigation, which may entail an omission, and the perpetration of the act. In the scenario under discussion, this means it must be proved that the subordinates would not have committed the subsequent crimes if the commander had not failed to punish the earlier ones. However, with respect to the Defence’s submission that under Article 7(3) of the Statute proof is required that the commander’s omission caused the commission of the crime by the subordinate, the Trial Chamber is of the view that such a causal link may be considered inherent in the requirement that the superior failed to prevent the crimes which were committed by the subordinate. In other words, the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed."[2]
Moreover, the Kordić Trial Chamber has held that:
"The Trial Chamber is of the view that in cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by Article 7(1). Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1)"."[3]
Footnotes:
[1] ICTR, Akayesu Trial Judgement 2 September 1998, para. 557.
[2] ICTY, Blakić Trial Judgment 3 March 2000, para. 337-39.
[3] ICTY, Kordić Trial Judgment 26 February 2001, para. 371.
