Table of contents:
Element:
M.1.1. ICC
No judgment on this issue has been rendered, yet.
M.1.2. ICTY
After an in-depth assessment of the superior responsibility’s recognition in international law,[63] the Delalic et al. ("Čelebići") Trial Chamber:
"[c]oncludes that the principle of individual criminal responsibility of superiors for failure to prevent or repress the crimes committed by subordinates forms part of customary international law."[1]
In the Perišić Judgment, the Trial Chamber stated that:
"Article 7(3) of the Statute is applicable to all acts referred to in Articles 2 and 5 of the Statute and applies to both international and non-international armed conflicts."[2]
M.1.3. ICTR
No judgments on this issue have been rendered.
"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."
Footnotes:
[1] ICTY, Prosecutor v. Delalić et al. ("Čelebići"), "Judgment", IT-96-21-T, 16 November 1998, para. 343. Confirmed in ICTY, Prosecutor v. Blakić ("Lava Valley"), "Judgment", IT- 3 March 2000, para. 290.
[2] ICTY, Prosecutor v. Periić, "Judgment", IT-04-81-T, 6 September 2011, para. 138 (footnote omitted).
