Practice Relating to Rule 151. Individual Responsibility

Note. For practice concerning the ending of impunity, bringing perpetrators of serious violations of IHL to justice and the prosecution of war crimes, see Rule 158.
Treaty of Versailles
Article 227 of the 1919 Treaty of Versailles provides:
The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.
A special tribunal will be constituted to try the accused. 
Treaty of Versailles, Versailles, 28 June 1919, Article 227.
Treaty of Versailles
Article 228 of the 1919 Treaty of Versailles provides:
The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. 
Treaty of Versailles, Versailles, 28 June 1919, Article 228.
London Agreement
Article 1 of the 1945 London Agreement provided that the International Military Tribunal for Germany be established “for the trial of war criminals … whether they be accused individually or in their capacity as members of organizations or groups or in both capacities”. 
Agreement between the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945, Article 1.
IMT Charter (Nuremberg)
Article 6 of the 1945 IMT Charter (Nuremberg) provides:
The Tribunal … shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against peace: …
(b) War crimes: …
(c) Crimes against humanity: …
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 6.
IMT Charter (Nuremberg)
Article 7 of the 1945 IMT Charter (Nuremberg) provides: “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.” 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 7.
Genocide Convention
Article 1 of the 1948 Genocide Convention provides: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” 
Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly, Res. 260 A (III), 9 December 1948, Article 1.
Geneva Convention I
Article 49 of the 1949 Geneva Convention I provides:
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 49.
Corresponding provisions are contained in Article 50 of the 1949 Geneva Convention II, Article 129 of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 50; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 129; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 146.
The grave breaches to which the obligations of paragraphs 1 and 2 apply are defined in Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 50; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 51; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 130; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 147.
Hague Convention for the Protection of Cultural Property
Article 28 of the 1954 Hague Convention for the Protection of Cultural Property requires States “to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit … a breach of the present Convention”. 
Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, Article 28.
Convention on Crimes against Internationally Protected Persons
Article 2(2) of the 1973 Convention on Crimes against Internationally Protected Persons provides: “Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.”  
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the UN General Assembly, Res. 3166 (XXVIII), 14 December 1973, Article 2(2).
Additional Protocol I
Article 85(1) of the 1977 Additional Protocol I provides: “The provisions of the [1949 Geneva] Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 85(1). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
The grave breaches of the 1977 Additional Protocol I are defined in Articles 11(4) and 85(3) and (4) of the Protocol. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Articles 11(4) and 85(3) and (4). Article 11 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 69. Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
OAU Convention against Mercenarism
Article 4 of the 1977 OAU Convention against Mercenarism, entitled “Scope of criminal responsibility”, states: “A mercenary is responsible both for the crime of mercenarism and all related offences, without prejudice to any other offences for which he may be prosecuted.” 
Convention for the Elimination of Mercenarism in Africa, adopted by the OAU Council of Ministers at its 29th Session, Res. 817 (XXIX), Libreville, 3 July 1977, OAU Doc. CM/817 (XXIX) Annex II Rev.3 (1977), Article 4.
Convention against Torture
Article 4 of the 1984 Convention against Torture requires each State to “ensure that all acts of torture are offences under its criminal law” and to “make these offences punishable by appropriate penalties which take into account their grave nature”. 
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly, Res. 39/46, 10 December 1984, Article 4.
Convention on the Safety of UN Personnel
Article 9 of the 1994 Convention on the Safety of UN Personnel provides:
1. The intentional commission of:
(a) A murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel;
(b) A violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty;
(c) A threat to commit any such attack with the objective of compelling a physical or juridical person to do or to refrain from doing any act;
(d) An attempt to commit any such attack; and
(e) An act constituting participation as an accomplice in any such attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack, shall be made by each State Party a crime under its national law.
2. Each State Party shall make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take into account their grave nature. 
Convention on the Safety of United Nations and Associated Personnel, adopted by the UN General Assembly, Res. 49/59, 9 December 1994, Article 9.
Article 2(2) of the 1994 Convention on the Safety of UN Personnel states:
This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies. 
Convention on the Safety of United Nations and Associated Personnel, adopted by the UN General Assembly, Res. 49/59, 9 December 1994, Article 2(2).
Amended Protocol II to the Convention on Certain Conventional Weapons
Article 14 of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons provides:
1. Each High Contracting Party shall take all appropriate steps, including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on territory under its jurisdiction or control.
2. The measures envisaged in paragraph 1 of this Article include appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring such persons to justice. 
Protocol on Prohibitions on the Use of Mines, Booby-Traps and Other Devices, as amended, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 3 May 1996, Article 14.
Ottawa Convention on Anti-Personnel Mines
Article 9 of the 1997 Ottawa Convention on Anti-Personnel Mines provides:
Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control. 
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Ottawa, 18 September 1997, Article 9.
ICC Statute
Article 1 of the 1998 ICC Statute provides for the establishment of an International Criminal Court with “the power to exercise jurisdiction over persons for the most serious crimes of international concern”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 1.
ICC Statute
Article 5(1) of the 1998 ICC Statute provides for the jurisdiction of the Court over the crime of genocide, crimes against humanity, war crimes and the crime of aggression. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 5(1).
ICC Statute
Article 8(2)(c) and (e) of the 1998 ICC Statute gives the Court jurisdiction over violations of common Article 3 of the 1949 Geneva Conventions and “other serious violations of the laws and customs applicable in armed conflicts not of an international character”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(c) and (e).
ICC Statute
Article 25 of the 1998 ICC Statute, entitled “individual criminal responsibility”, provides:
1.The Court shall have jurisdiction over natural persons pursuant to this Statute.
2.A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3.In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.  
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 25.
ICC Statute
Article 30(1) of the 1998 ICC Statute provides: “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 30(1).
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 15(1) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides a list of acts being considered as offences within the meaning of the Protocol. Article 15(2) provides:
Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act. 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 15(1) and (2).
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 22(1) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides: “This Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties.” 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 22(1).
Optional Protocol on the Involvement of Children in Armed Conflict
Article 4 of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict provides:
1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. 
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, adopted by the UN General Assembly, Res. 54/263, 25 May 2000, Annex I, Article 4.
Agreement on the Special Court for Sierra Leone
Article 1(1) of the 2002 Agreement on the Special Court for Sierra Leone, concluded pursuant to Security Council Resolution 1315 (2000), provides for the establishment of a Special Court for Sierra Leone “to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996”. 
Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the Security Council, UN Doc. S/2002/246, 8 March 2002, p. 17, Article 1(1).
Statute of the Special Court for Sierra Leone
Article 1(1) of the 2002 Statute of the Special Court for Sierra Leone provides:
The Special Court shall … have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 1(1).
Statute of the Special Court for Sierra Leone
Article 6 of the 2002 Statute of the Special Court for Sierra Leone, entitled “Individual criminal responsibility”, provides:
1. A person who planned, instigated, … committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute [i.e. crimes against humanity, violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, and other serious violations of international humanitarian law] shall be individually responsible for the crime.
2. The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 6.
UN-Cambodia Agreement Concerning the Prosecution of Crimes Committed During the Period of Democratic Kampuchea
The 2003 UN-Cambodia Agreement Concerning the Prosecution of Crimes Committed During the Period of Democratic Kampuchea provides:
The purpose of the present Agreement is to regulate the cooperation between the United Nations and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 1.
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Convention on Enforced Disappearance
Article 6(1) of the 2006 Convention on Enforced Disappearance provides:
Each State Party shall take the necessary measures to hold criminally responsible at least:
(a) Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance. 
International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Article 6(1).
Statute of the Special Tribunal for Lebanon
Article 3(1) of the 2007 Statute of the Special Tribunal for Lebanon provides:
A person shall be individually responsible for crimes within the jurisdiction of the Special Tribunal if that person:
(a) Committed, participated as accomplice, organized or directed others to commit the crime set forth in article 2 of this Statute; or
(b) Contributed in any other way to the commission of the crime set forth in article 2 of this Statute by a group of persons acting with a common purpose, where such contribution is intentional and is either made with the aim of furthering the general criminal activity or purpose of the group or in the knowledge of the intention of the group to commit the crime. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 3(1).
Kampala Convention
Article 3(1) of the 2009 Kampala Convention provides:
States Parties undertake to respect and ensure respect for the present Convention. In particular, State Parties shall:
g. Ensure individual responsibility for acts of arbitrary displacement, in accordance with applicable domestic and international criminal law. 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa adopted in Kampala, Uganda, 23 October 2009, Article 3(1)(g).
Lieber Code
Article 44 of the 1863 Lieber Code provides:
All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.  
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 44.
Lieber Code
Article 47 of the 1863 Lieber Code provides:
Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 47.
Oxford Manual
Article 84 of the 1880 Oxford Manual provides: “Offenders against the laws of war are liable to the punishments specified in the penal law.” 
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 84.
Report of the Commission on Responsibility
The 1919 Commission on Responsibility was mandated, inter alia, to investigate individual responsibility for breaches of the laws of war and to draft proposals for the establishment of a tribunal to try these offences. The Commission identified a non-exhaustive list of 30 categories of violations of the laws and customs of war. 
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
Moscow Declaration
In the 1943 Moscow Declaration, the United Kingdom, United States and Union of Soviet Socialist Republics, “speaking in the interest of the thirty-two United Nations”, expressed their determination that:
Those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished … Thus, Germans who take part in … [such acts] will know they will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged. 
Declaration concerning Atrocities, made at the Moscow Conference, signed by the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and China, Moscow, 30 October 1943.
Allied Control Council Law No. 10
Article II, Section 4(a) of the 1945 Allied Control Council Law No. 10 provides: “The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.” 
Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, enacted by the Allied Control Council of Germany, composed of the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and the Union of Soviet Socialist Republics, Berlin, 20 December 1945, Article II.
IMT Charter (Tokyo)
Article 5 of the 1946 IMT Charter (Tokyo), entitled “Jurisdiction over Persons and Offences”, provides:
The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offences which include Crimes against Peace.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against Peace: …
(b) Conventional War Crimes: Namely, violations of the laws or customs of war;
(c) Crimes against Humanity. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 5.
IMT Charter (Tokyo)
Article 6 of the 1946 IMT Charter (Tokyo), entitled “Responsibility of Accused”, provides:
Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 6.
Nuremberg Principles
Principle I of the 1950 Nuremberg Principles provides: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle I.
Nuremberg Principles
Principle II of the 1950 Nuremberg Principles provides: “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle II.
Nuremberg Principles
Principle III of the 1950 Nuremberg Principles provides:
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle III.
Nuremberg Principles
Principle VI of the 1950 Nuremberg Principles provides:
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace: …
(b) War crimes: …
(c) Crimes against humanity. 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle VI.
ILC Draft Code of Offences against the Peace and Security of Mankind (1954)
Article 1 of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind provides: “Offences against the peace and security of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punished.” 
Draft Code of Offences against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its sixth session, UN Doc. A/2693, 1954, Article 1.
ILC Draft Code of Offences against the Peace and Security of Mankind (1954)
Article 3 of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind provides: “The fact that a person acted as Head of State or as responsible government official does not relieve him of responsibility for committing any of the offences defined in this Code.” 
Draft Code of Offences against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its sixth session, UN Doc. A/2693, 1954, Article 3.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 11 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia provides:
Each party undertakes, when it is officially informed of such an allegation made or forwarded by the ICRC, to open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force.  
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 11.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 3 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides:
1. An individual who commits a crime against the peace and security of mankind is responsible therefor and is liable to punishment.
2. An individual who aids, abets or provides the means for the commission of a crime against the peace and security of mankind or conspires in or directly incites the commission of such a crime is responsible therefor and is liable to punishment.
3. An individual who commits an act constituting an attempt to commit a crime against the peace and security of mankind … is responsible therefor and is liable to punishment. Attempt means any commencement of execution of a crime that failed or was halted only because of circumstances independent of the perpetrator’s intention. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 3.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 4 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides: “Responsibility for a crime against the peace and security of mankind is not affected by any motives invoked by the accused which are not covered by the definition of the crime.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 4.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 13 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides: “The official position of an individual who commits a crime against the peace and security of mankind, and particularly the fact that he acts as head of State or Government, does not relieve him of criminal responsibility.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 13.
London Programme of Action on Humanitarian Issues
Article 3(i) of the 1992 London Programme of Action on Humanitarian Issues provides:
In carrying out the Programme of Action, the parties to the conflict undertook to abide by the following provisions:
i) all parties to the conflict are bound to comply with their obligations under International Humanitarian Law and in particular the Geneva Conventions of 1949 and the Additional Protocols thereto, and that persons who commit or order the commission of grave breaches are individually responsible. 
Programme of Action on Humanitarian Issues agreed between the Co-chairmen of the London International Conference and the Parties to the conflict in Bosnia and Herzegovina, London, 27 August 1992, annexed to Report by the Special Rapporteur of the UN Commission on Human Rights on the situation of human rights in the territory of the former Yugoslavia, UN Doc. E/CN.4/1993/50, 10 February 1993, Annex III, Article 3(i).
ICTY Statute
Articles 2–5 of the 1993 ICTY Statute give the ICTY the power to prosecute grave breaches of the 1949 Geneva Conventions (Article 2), violations of the laws or customs of war (Article 3), genocide (Article 4) and crimes against humanity (Article 5). Article 5 expressly states that the Tribunal has jurisdiction over such crimes “when committed in armed conflict, whether international or internal in character”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Articles 2–5.
ICTY Statute
Article 6 of the 1993 ICTY Statute provides that the ICTY has jurisdiction over natural persons. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 6.
ICTY Statute
Article 7 of the 1993 ICTY Statute provides:
1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 7.
ILC Draft Statute for an International Criminal Tribunal (1994)
Article 20 of the 1994 ILC Draft Statute for an International Criminal Tribunal provides for the jurisdiction of an International Criminal Court with respect to the following crimes:
(a) the crime of genocide;
(b) the crime of aggression;
(c) serious violations of the laws and customs applicable in armed conflict;
(d) crimes against humanity;
(e) crimes, established under or pursuant to the treaty provisions listed in the Annex, which, having regard to the conduct of the alleged, constitute exceptionally serious crimes of international concern. 
Draft Statute for an International Criminal Court, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-sixth session, 2 May–22 July 1994, UN Doc. A/49/10, 1994, Article 20.
ILC Draft Statute for an International Criminal Tribunal (1994)
The Annex to the 1994 ILC Draft Statute for an International Criminal Tribunal, entitled “Crimes pursuant to Treaties (see art. 20 (e))” refers, inter alia, to grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I, the crimes defined by Article 2 of the 1973 Convention on Crimes against Internationally Protected Persons, and the crime of torture made punishable by Article 4 of the 1984 Convention against Torture. 
Draft Statute for an International Criminal Court, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-sixth session, 2 May–22 July 1994, UN Doc. A/49/10, 1994, Annex.
ICTR Statute
The 1994 ICTR Statute grants the Tribunal the power to prosecute persons accused of genocide (Article 2), crimes against humanity (Article 3), and serious violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II (Article 4). 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Articles 2, 3 and 4.
ICTR Statute
Article 5 of the 1994 ICTR Statute provides that the ICTR shall have jurisdiction over natural persons. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 5.
ICTR Statute
Article 6 of the 1994 ICTR Statute provides:
1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 6.
Guidelines on the Protection of the Environment in Times of Armed Conflict
Section 20 of the 1994 Guidelines on the Protection of the Environment in Times of Armed Conflict provides: “In the event of breaches of rules of international humanitarian law protecting the environment, measures shall be taken to stop any such violation and to prevent further breaches … In serious cases, offenders shall be brought to justice.” 
Revised Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, prepared by the International Committee of the Red Cross and presented to the UN Secretary-General, annexed to Report of the Secretary-General on the United Nations Decade of International Law, UN Doc. A/49/323, 19 August 1994, pp. 49–53, Section 20.
CSCE Code of Conduct
Paragraph 30 of the 1994 CSCE Code of Conduct provides: “Each participating State … will ensure that [armed forces personnel] are aware that they are individually accountable under national and international law for their actions.” 
The Code of Conduct on Politico-Military Aspects of Security, adopted at the 91st Plenary Meeting of the Special Committee of the CSCE Forum for Security Co-operation, Budapest, 3 December 1994, incorporated as Decision IV in the CSCE Budapest Document, Towards a Genuine Partnership in a New Era, Doc. RC/1/95, corrected version of 21 December 1994, § 30.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 2 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Individual responsibility”, provides:
1. A crime against the peace and security of mankind entails individual responsibility.
3. An individual shall be responsible for a crime set out in article 17, 18, 19 or 20 if that individual:
(a) intentionally commits such a crime;
(d) knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission;
(e) directly participates in planning or conspiring to commit such a crime which in fact occurs;
(f) directly and publicly incites another individual to commit such a crime which in fact occurs;
(g) attempts to commit such a crime by taking action commencing the execution of a crime which does not in fact occur because of circumstances independent of his intentions. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 2.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 7 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides: “The official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of State or Government, does not relieve him of criminal responsibility or mitigate punishment.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 7.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 16 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Crime of aggression”, provides: “An individual who, as leader or organizer, actively participates in … the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 16.
UN Secretary-General’s Bulletin
Section 4 of the 1999 UN Secretary-General’s Bulletin provides: “In case of violations of international humanitarian law, members of the military personnel of a United Nations force are subject to prosecution in their national courts.” 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 4.
UNTAET Regulation No. 2000/15
Section 1(1) and (2) of the UNTAET Regulation No. 2000/15 “on the establishment of panels with exclusive jurisdiction over serious criminal offences” establishes “panels of judges … within the District Court in Dili with exclusive jurisdiction to deal with serious criminal offences” and “panels within the Court of Appeal in Dili to hear and decide an appeal”. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 1(1) and (2).
UNTAET Regulation No. 2000/15
Section 1(3) of the UNTAET Regulation No. 2000/15 provides:
[The panels of judges] … shall exercise jurisdiction in accordance with Section 10 of UNTAET Regulation No. 2000/11 and with the provisions of the present regulation with respect to the following serious criminal offences:
(a) Genocide;
(b) War Crimes;
(c) Crimes against Humanity;
(d) Murder;
(e) Sexual Offences; and
(f) Torture. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 1(3).
UNTAET Regulation No. 2000/15
Section 14 of the 2000 UNTAET Regulation No. 2000/15 provides:
14.1 The panels shall have jurisdiction over natural persons pursuant to the present regulation.
14.2 A person who commits a crime within the jurisdiction of the panels shall be individually responsible and liable for punishment in accordance with the present regulation.
14.3 In accordance with the present regulation, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the panels if that person:
(a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose …
(e) in respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under the present regulation for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 14.
ILC Draft Articles on State Responsibility
Article 58 of the 2001 ILC Draft Articles on State Responsibility, entitled “Individual responsibility”, states: “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”  
Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its fifty-third session, 23 April–1 June and 2 July–10 August 2001, UN Doc. A/56/10, 2001, Article 58.
Argentina
Argentina’s Law of War Manual (1989) reiterates the provisions of the 1949 Geneva Conventions requiring States to take the necessary legislative measures to provide effective penal sanctions for persons committing grave breaches. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.02.
The manual further notes:
Offences under the laws of war do not constitute “acts of war” and thus may be punished under the Military Penal Code or the Penal Code … All violations of the laws of war are offences which affect the international relations of the Nation and, as such, are subject to sanction. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.05.
Australia
Australia’s Defence Force Manual (1994) provides:
ADF [Australian Defence Force] members are open to prosecution for breaches of LOAC. Individual responsibility for compliance cannot be avoided and ignorance is not a justifiable excuse. ADF members will be held to account for any unlawful action that leads to a serious breach of LOAC. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1306; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1207.
Australia
Australia’s Defence Training Manual (1994) states that members of the Australian Defence Force “are to be aware of the rules which, if violated, make an individual personally liable for breaches of LOAC”. 
Australia, Law of Armed Conflict Training, DI(G) OPS 33-1, 24 January 1994, § 8(d).
Australia
Australia’s LOAC Manual (2006) states:
1.12 The LOAC, being part of international law, is binding on nations but it also regulates the conduct of individuals. The Criminal Code Act 1995 (Criminal Code) makes the offences of genocide, crimes against humanity, and war crimes that are grave breaches of the Geneva Conventions and G. P. I [1977 Additional Protocol I], as well as other serious violations of the LOAC, offences under Commonwealth law. A member of the ADF [Australian Defence Force] who is in breach of the LOAC would also be liable to be charged under the DFDA [Defence Force Discipline Act 1982] for corresponding service offences.
1.13 A violation of the LOAC by the armed forces of a nation involves the international responsibility of that nation. A violation may also lead to the prosecution of the individuals concerned for war crimes …
1.14 … The International Military Tribunal at Nuremberg rejected the assertion that the LOAC applies only to nations. Since that time, decisions in many war crimes trials have reinforced the principle of individual criminal responsibility of members of the armed forces or others who violate the LOAC …
13.7 ADF members are open to prosecution for breaches of LOAC. Individual responsibility for compliance cannot be avoided and ignorance is not a justifiable excuse. ADF members will be held to account for any unlawful action that leads to a serious breach of LOAC …
13.39 Individuals are responsible for the war crimes that they commit themselves or which they order or assist others to commit. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 1.12–1.14, 13.7 and 13.39.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) provides: “The soldier shall know that respect for these rules [of the law of war] is a part of military discipline and that any violation will lead to disciplinary or criminal sanctions.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 15.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Violations of the law of war must be repressed by … criminal sanctions.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 28.
The Regulations also states: “Regarding serious violations of the law of war, a State must ensure the criminal punishment of the author of such an offence.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 114.
Cameroon
Cameroon’s Disciplinary Regulations (1975) provides that the violation of the rules of the law of war renders members of the armed forces war criminals, liable to prosecution under military jurisdiction. 
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 35.
Cameroon
Cameroon’s Instructor’s Manual (2006) states:
States parties to the Geneva Conventions and their Additional Protocols are obliged to repress grave breaches of the law of armed conflict and international humanitarian law. Individuals may be prosecuted for war crimes [committed] both in the course of international armed conflict (treaty-based) and non-international armed conflict (based on custom). 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 295.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 35. Responsibility and instruction
Within the framework of the rules of this chapter, the soldiers of the Cameroonian Defence Forces must make themselves thoroughly familiar with their responsibility as regards respect for international humanitarian law and the law of armed conflicts: the violation of these rules makes them war criminals who may be brought before national military courts or international criminal courts. 
Cameroon, Règlement de discipline Générale dans les Forces de Défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 35.
Canada
Canada’s LOAC Manual (1999) states: “Heads of state as well as members of the administration may be held personally and criminally responsible for illegalities committed in the performance of their official duties”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 10.
The manual further notes: “Any person who planned, instigated, … committed or otherwise aided and abetted in the planning, preparation or execution of a war crime … may be held criminally responsible for the crime.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 24.
The manual adds: “The official position of any accused person, whether as Head of State or as a responsible government official, does not relieve such person of criminal responsibility nor mitigate punishment.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 25.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1014. Responsibility
1. The responsibility for the treatment of PWs rests upon the Detaining Power. Failure to properly care for PWs may make that power liable to pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur, are liable to be tried as war criminals.
1038. Breaches of PW Convention
1. Parties to the conflict shall take such measures as may be necessary to suppress and punish all breaches of [the 1949 Geneva Convention III]. If a breach amounts to a grave breach all persons responsible therefore, or having ordered such acts, shall, regardless of nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1014 and 1038.
In its chapter entitled “Communications and contact between opposing forces”, the manual states:
Any agreement made by belligerent commanders must be adhered to, and any breach of its conditions would involve international responsibility if ordered by a government, and personal liability, (which might amount to a war crime) if committed by an individual on his or her own authority. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1403.1.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual provides:
1. Any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a war crime … may be held criminally responsible for the crime.
2. The official position of any accused person, whether as Head of State or as a responsible government official, does not relieve such person of criminal responsibility nor mitigate punishment. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1610.1.
In its chapter on non-international armed conflict, the manual states:
1725. Breaches of Protocol II
1. When [the 1977 Additional Protocol II] was adopted, states refused to make violations of its provisions regarding criminal offences. Certain nations were reluctant to allow other states to interfere in their internal affairs by way of trials for war crimes alleged to have taken place in their national territory.
2. Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts.
3. Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law. Such crimes may be tried by international tribunals such as the International Criminal Tribunal for Rwanda. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1725.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
If any person commits or orders others to commit [grave breaches of the 1949 Geneva Conventions or the 1977 Additional Protocol I], he is liable to be brought to trial in any country including his own or, if captured, in that of the enemy. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.1.
Canada
Canada’s Code of Conduct After Capture Manual (2004) states:
The responsibility for the treatment of PWs [prisoners of war] rests upon the detaining power. Failure to care for PWs properly may make that power pay compensation, while the individuals responsible for such ill-treatment … are liable to be tried as war criminals. 
Canada, The Code of Conduct After Capture for the Canadian Forces, B-GJ-005-110/FP-010, National Defence Headquarters, 28 October 2004, § 301.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Soldiers must know that respecting these rules [of the law of war] is part of military discipline and that any violations will result in disciplinary or penal sanctions.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 4.
In Volume 2, the manual further states: “All violations of the law of war are punishable.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter V, Section II, § 12.
Colombia
Colombia’s Basic Military Manual (1995) states: “Under the terms of Chapter IX of the First Geneva Convention relative to the repression of abuses and infractions, IHL establishes the principle of individual responsibility.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 37.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book II (Instruction of non-commissioned officers and officers):
II.1.1. Responsibilities of the members of the armed forces
International humanitarian law has established individual and criminal responsibility for the respect of the humanitarian obligations.
Every member of the armed forces, whatever his rank, is personally responsible to respect the law of armed conflicts, to make sure that the others respect it and to act in case of a violation.
This responsibility lies with all; everyone therefore must answer for his conduct.
II.1.2. Responsibilities of the non-commissioned officer and officer
Respect for IHL in the theatre of operations lies mainly with the military leader … In this respect, the non-commissioned officer or officer is responsible
- for acts in violation of the rules of IHL committed by him. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 30; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 37 and 38–39; Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 68.
[emphasis in original]
Dominican Republic
The Dominican Republic’s Military Manual (1980) tells soldiers: “If you violate any of the laws of war, you commit a crime and are subject to punishment under the … laws and the Code of Military Justice.” 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 12.
Ecuador
Ecuador’s Naval Manual (1989) states: “Acts constituting war crimes may be committed by the armed forces of a belligerent or by individuals belonging to the civilian population.” 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5.
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces provides: “Nobody shall escape the law, when a violation of human rights has been committed.” It adds: “The committed violations shall not go unpunished.” 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, undated, pp. 16 and 17.
France
France’s LOAC Manual (2001) states: “Each individual is responsible for the violations of the law of armed conflict he has committed, whatever the circumstances.” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 113.
Germany
Germany’s Military Manual (1992) provides: “Each member of the armed forces who has violated the rules of international humanitarian law must be aware of the fact that he can be prosecuted according to penal or disciplinary provisions.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1207.
A commentary on the manual notes:
The Second Additional Protocol (AP II) does not mention grave breaches. Article 6 nevertheless regulates the prosecution and punishment of criminal offences connected with armed conflict. The AP II presumes application of domestic criminal law, whereby the domestic power of sentence is subordinate to the demands of the Protocol. 
Rüdiger Wolfrum, “Enforcement of International Humanitarian Law”, in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 524.
Guinea
Guinea’s Code of Conduct (2011) states: “Defence forces members are individually responsible for their actions in cases of violations of national law, international humanitarian law and human rights.” 
Guinea, Code de Conduite des Forces de Défense (Code of Conduct of the Defence Forces), 2011, Ministère de la Défense Nationale, approved by Presidential Decree No. D 289/PRG/SGG/2011, 28 November 2011, Article 7.
Guinea
Guinea’s Code of Conduct (2014) states: “Defence forces members are individually responsible for their actions in cases of violations of national law, international humanitarian law and human rights.” 
Guinea, Code de Conduite des Forces de Défense (Code of Conduct of the Defence Forces), 2014 edition, Ministère de la Défense Nationale, 28 November 2011, Article 7.
Ireland
Ireland’s Basic LOAC Guide (2005) provides a list of “Soldiers Rules”, one of which is: “Disobedience to the law of war is a crime and not only dishonours your country and you but renders you liable to punishment as a war criminal.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 13.
Italy
Italy’s IHL Manual (1991) states that individual criminal responsibility for those who commit a war crime is provided for under Italian law. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 83.
Netherlands
The Military Manual (1993) of the Netherlands contains a provision entitled “Individual responsibility”, which refers to the detailed provisions on the suppression and punishment of war crimes contained in the manual. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-3.
Netherlands
The Military Manual (2005) of the Netherlands states:
In the modern development of international legal transactions, the individual is also recognized as a possible legal subject in international law. This is important for the functioning of the humanitarian law of war. It means that the individual himself is a legal subject and, as such, possesses the rights granted under the law and is bound by the obligations imposed by the law. In addition to States and international organizations, individuals can be directly subject to the requirements of international law. According to the general prevailing opinions, areas in which the individual acts as a holder of rights, and a subject of obligations, directly deriving from international law, include large parts of the humanitarian law of war. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0109.
The manual also states: “Individual criminal liability for war crimes is a consequence of the recognition of the individual as a legal subject in international law.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, p. 16.
In its chapter on the prevention and punishment of war crimes, the manual provides:
1107. The commanding officer’s responsibility does not prevent an individual member of the military from being held directly liable under the humanitarian law of war (see point 1121).
1121. Individual personal responsibility and the responsibility of senior military figures and commanding officers
Every member of the military is personally responsible for compliance with the humanitarian law of war. Senior military officers should emphasize this by their exemplary personal behaviour. They should make it clear that everyone must be guided by conscience in upholding the humanitarian law of war.
Section 6 - Penal liability
1146. Any member of the armed forces holds personal responsibility to act in accordance with the humanitarian law of war. Moreover, he must do everything within his power to ensure that others so act. Finally, he should take measures whenever he becomes aware of breaches of the humanitarian law of war.
1147. The humanitarian law of war is not binding on States alone, but also on individuals. Penal liability exists not only for crimes an individual has committed, but for connivance in the crimes of others, as an accessory, perpetrator, accomplice or inciter.
1148. Attempts and preparation of war crimes (e.g., by providing means of transport or accommodation) are also punishable. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1107, 1121 and 1146–1148.
Peru
Peru’s Human Rights Charter of the Security Forces (1991) provides: “Nobody shall escape the law when a violation of human rights has been committed. There shall be no impunity when a violation of human rights has been committed.” 
Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, 1991, p. 21; see also p. 27.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “In accordance with international humanitarian law and the penal legislation of the Russian Federation, perpetrators of international humanitarian law breaches can be held criminally responsible.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 14.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
Individual Responsibility
- Every member of the [Republic of Sierra Leone Armed Forces] has a personal responsibility to comply with the law of armed conflict.
- Ensure that it is complied with by others and to take action when violations are encountered.
- Any member[s] of the [Republic of Sierra Leone Armed Forces] who commit, order, assist, fail to prevent or fail to report serious violation[s] of the law of armed conflict commit war crimes for which they can be tried and, if found guilty, punish[ed]. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 65.
[emphasis in original]
South Africa
South Africa’s LOAC Manual (1996) states: “The conventions and protocols place specific obligations on individual members of the SANDF [South African National Defence Force]; breaches thereof may lead to personal liability.” 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 4.
The manual further states: “Signatory States are required to treat as criminals under domestic law anyone who commits or orders a grave breach.” 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 35.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
Every member of the SANDF [South African National Defence Force] is, by virtue of South Africa’s ratification of the Geneva Conventions, subject to the LOAC. Any grave breach of the LOAC is regarded as a war crime and shall be repressed by penal sanction. … Offenders could face disciplinary action for simple breaches. If breaches go unpunished, it would signify the degradation of human values and the regression of the entire concept of humanity. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 57.
Spain
Spain’s LOAC Manual (1996) provides: “Each person is subject to personal responsibility for the acts he is committing in breach of the rules of armed conflicts and which are qualified as disciplinary offences, criminal offences or war crimes.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 7.6.b.
Spain
Spain’s LOAC Manual (2007) states that “individuals are subject to individual responsibility for acts that constitute a violation of the rules of armed conflict, which can be classed as a disciplinary offence, a criminal offence or a war crime”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.6.b.
The manual also states: “All individuals bear individual responsibility for any violations of the law of armed conflict that they commit. They bear criminal responsibility if it is a serious violation classed as a criminal offence or a war crime.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 11.5.b.
Sweden
Sweden’s IHL Manual (1991) provides: “Individual servicemen also bear a responsibility for the observance of international humanitarian law.” 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.2, p. 95.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “The violations of the laws and customs of war, commonly known as war crimes, engage the individual responsibility of those who committed them.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 191.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
3 All military persons are in principle personally responsible for their acts or omissions. …
187 Prisoners must be humanely treated at any time and in any place. … The State is responsible for the treatment of prisoners; each individual may be held liable for violations.
198 Foreign civilians or civilians of an adverse party to a conflict are specifically protected under the law of armed conflict. If they are in the hands of a military unit, they must at all times be treated humanely. … The State is responsible for the treatment of prisoners and internees. Each individual is held liable under criminal law for violations.
17 Sanctions for violations of the international law of armed conflict
17.1 General provisions
234 Violations of the international law of armed conflict are punished according to the provisions of the Swiss Penal Code or the Military Criminal Code.
236 Under Art. 109 of the Military Criminal Code, any person who violates the provisions of international treaties on the conduct of war and the protection of persons and goods or other recognized laws and customs of war is liable to imprisonment of up to three years or in serious cases of up to 20 years. In minor cases, disciplinary sanctions apply.
17.2 Personal responsibility
242 Every person is in principle responsible for his acts and omissions.
243 For criminal offences committed under official orders, the superiors or persons who issued the order are punishable, even though they have not personally committed the offence. The subordinates are liable as well if they were aware that executing the order would lead to a criminal offence.
244 Therefore subordinates and superiors are criminally liable. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 3, 187, 198, 234, 236 and 242–244.
[emphasis in original]
Tajikistan
Tajikistan’s Manual of Internal Service of the Armed Forces (2001) states: “The military servicemen bear criminal responsibility for committing crimes according to the Criminal Code of the Republic of Tajikistan.” 
Tajikistan, Manual of Internal Service of the Armed Forces of the Republic of Tajikistan, endorsed by the Decree of the Madjilsi Namoyandagon of Madjlisi Oli [Parliament] of the Republic of Tajikistan No. 273 of 4 April 2001 and promulgated by the Order of the Minister of Defence of the Republic of Tajikistan No. 3 of 2 May 2001, § 28.
Togo
Togo’s Military Manual (1996) provides: “The soldier shall know that respect for these rules [of the law of war] is a part of military discipline and that any violation will lead to disciplinary or criminal sanctions.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 15.
Ukraine
Ukraine’s IHL Manual (2004) states:
1.8.1. International humanitarian law envisages individual responsibility of natural persons and obliges States parties to an armed conflict to take measures to discontinue any violations of its provisions.
1.8.2. Servicemen and contractors of the Armed Forces of Ukraine may be held responsible both disciplinarily and criminally for violations of the rules of international humanitarian law. Responsibility of Ukraine’s servicemen (citizens) for crimes related to violations of international humanitarian law, their qualification and list are contained in Annex 5 to this Manual.
1.8.3. Acts related to the use of prohibited means and methods of war may be committed both intentionally and unintentionally.
1.8.4. Persons who commit serious violations of international humanitarian law shall be held criminally responsible. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.8.1–1.8.4
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “Although international law is aimed mainly at regulating the conduct of States and their Governments, individual combatants are required to comply with the law of armed conflict.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 2, p. 7, § 7.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
16.35. Individuals are responsible for the war crimes that they commit themselves or which they order or assist others to commit.
16.35.1. Article 7 of the Statute of the International Criminal Tribunal for the former Yugoslavia provides that “a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.”
16.35.2. The Rome Statute of the International Criminal Court also confirms that an individual is responsible for a war crime if he:
a. commits the crime himself, on his own or jointly with others, or
b. orders, solicits or induces a crime which is committed or attempted, or
c. aids, abets or otherwise assists in the commission of the crime, including providing the means for its commission, or
d. contributes to the commission or attempted commission of the crime by a group of persons acting with a common purpose. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 16.35–16.35.2.
United States of America
The US Field Manual (2004) states:
Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Such offences in connection with war comprise:
a. Crimes against peace.
b. Crimes against humanity.
c. War crimes.
Although this manual recognizes the criminal responsibility of individuals for those offences which may comprise any of the foregoing types of crimes, members of the armed forces will normally be concerned only with those offences constituting “war crimes”. 
United States, Field Manual 27-10, The Law of Land Warfare , US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 498.
The manual also states: “Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 500.
After quoting the common articles of the 1949 Geneva Conventions on penal measures (Article 49 of the Geneva Convention I, Article 50 of the Geneva Convention II, Article 129 of the Geneva Convention III and Article 146 of the Geneva Convention IV), the manual states that these provisions “are declaratory of the obligations of belligerents under customary international law to take measures for the punishment of war crimes committed by all persons, including members of a belligerent’s own forces”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 506(b).
The manual adds:
“Grave breaches” of the Geneva Conventions of 1949 and other war crimes which are committed by enemy personnel or persons associated with the enemy are tried and punished by United States tribunals as violations of international law. If committed by persons subject to US military law, the “grave breaches” constitute acts punishable under the Uniform Code of Military Justice. Moreover, most of the acts designated as “grave breaches” are, if committed within the United States, violations of domestic law over which the civil courts can exercise jurisdiction. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 506(c).
United States of America
The US Air Force Pamphlet (1976) states: “Combatants individually are responsible for following the law of armed conflict which obligates their nation.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 1-4(d).
The Pamphlet further states: “Individual criminal responsibility is another mechanism to enforce the law of armed conflict.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-6.
The Pamphlet also contains a list of “acts [in addition to the grave breaches of the Geneva Conventions of 1949] … representative of situations involving individual criminal responsibility”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c).
United States of America
The US Soldier’s Manual (1984) tells soldiers: “If you violate any of the laws of war, you commit a crime and are subject to punishment under US law, which includes the Uniform Code of Military Justice (UCMJ).” 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 26.
United States of America
The US Naval Handbook (1995) provides: “Acts constituting war crimes may be committed by the armed forces of a belligerent or by individuals belonging to the civilian population.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
CONSPIRACY.
a. Text. “Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission;
(2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and
(3) The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.
c. Comment.
(1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words.
(2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact “triable by military commission.” Although the accused must be subject to the MCA [Military Commissions Act of 2006], other co-conspirators need not be.
(3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act.
(4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed.
(5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the co-conspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it.
(6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.
(7) That the object of the conspiracy was impossible to effect is not a defense to this offense.
(8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense.
d. Maximum Punishment. Death, if the death of any person occurs as a result of the conspiracy or joint enterprise. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(28), pp. IV-20, IV-21 and IV-22.
United States of America
The US Naval Handbook (2007) states:
The fact that national law does not prohibit an act that constitutes a war crime under international law does not relieve the person who committed the act from responsibility under international law. However, the fact that a war crime under international law is made legal and even obligatory under national law may be considered in mitigation of punishment. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.4.3.
United States of America
The US Manual on Detainee Operations (2008) states:
Lawful combatants are EPWs [enemy prisoners of war] upon capture and are entitled to “combatant immunity” for their lawful pre-capture warlike acts. They may be prosecuted, however, for violations of the law of war. 
United States, Manual on Detainee Operations , Joint Chiefs of Staff, 30 May 2008, p. I-5.
The manual quotes a statement by the US President to the UN on the International Day in Support of Victims of Torture, 26 June 2004: “The United States … remains steadfastly committed to upholding the [1949] Geneva Conventions … Our Armed Forces are committed to complying with them and to holding accountable those in our military who do not.” 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-1.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
CONSPIRACY.
a. Text. “Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission;
(2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and
(3) The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.
c. Comment.
(1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words.
(2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact “triable by military commission.” Although the accused must be subject to the MCA [Military Commissions Act of 2009], other co-conspirators need not be.
(3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act.
(4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed.
(5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the co-conspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it.
(6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.
(7) That the object of the conspiracy was impossible to effect is not a defense to this offense.
(8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense.
d. Maximum punishment. Death, if the death of any person occurs as a result of the conspiracy or joint enterprise. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(29), pp. IV-23 and IV-24.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that “parties to the conflict … are authorized and have the duty to invoke criminal responsibility” with respect to personnel of their own and enemy armed forces who commit violations of IHL. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 32.
Note. Numerous States have adopted instruments criminalizing serious violations of IHL. This has been done in a number of ways. Because of their dualist approach to treaties, after ratifying the 1949 Geneva Conventions and the 1977 Additional Protocols, many States with a common-law tradition had to adopt implementing legislation, usually called Geneva Conventions Acts, to give national effect to these instruments and, in this implementing legislation, laid down the principle of criminal responsibility. Other States adopted provisions in their codes penalizing the violations. Some States adopted specific legislation criminalizing the violations.
Afghanistan
Afghanistan’s Law against Terrorist Offences (2008) states:
Article 17. Attempt to Commit or Participate in an Offence.
(1) A person who attempts to commit [an] offence [referred to] in Articles 9 to 16 of this law [including offences against persons protected under international treaties as provided for in article 13 of the same law], or is an accomplice in committing [such an] offence, with consideration of circumstances, he/she shall be sentenced to the same punishment prescribed for the perpetrator of the offence.
(2) The provisions of this law are not applicable concerning the attempt to threaten the commission of any offence [referred to] in Articles 9 to 16 of this law.
Article 18
A person who [joins] another person in order to participate in the commission of offences [referred to] in Articles 9 to 16 of this law or incites or encourages others [to commit] these offences or plans, [or] organizes … the commission of these offences, with consideration of circumstances, he/she shall be sentenced to long term imprisonment of not less than ten years or [life] imprisonment.
Article 19. Supporting or Service to the Offence.
(2) A person who recruits another person in order to participate in or carry out the commission of offences [referred to] in Articles 9 to 18 of this law, … shall be sentenced to the punishment prescribed for the perpetrator of the offence. 
Afghanistan, Law against Terrorist Offences, 2008, Articles 17–19.
Argentina
Argentina’s Penal Code (1984) provides that the penalty applied to the perpetrator of a crime shall also be applied to persons who cooperate with the perpetrator of the crime, which would not have taken place without such cooperation, and to those who “directly caused another person to commit the crime”. 
Argentina, Penal Code, 1984, Article 45.
Armenia
Armenia’s Penal Code (2003), in a chapter entitled “Crimes against the peace and security of mankind”, provides for the punishment of certain acts, committed during armed conflicts, which violate the laws and customs of war, including “[s]erious breaches of international humanitarian law during armed conflict”, crimes against humanity and genocide. 
Armenia, Penal Code, 2003, Articles 383, 386–387 and 390–397.
Australia
Australia’s War Crimes Act (1945), as amended in 2001, provides:
A person who:
(a) on or after 1 September 1939 and on or before 8 May 1945; and
(b) whether as an individual or as a member of an organisation;
committed a war crime is guilty of an indictable offence against this Act. 
Australia, War Crimes Act, 1945, as amended in 2001, Section 9(1).
A “serious crime” constitutes a “war crime” when committed “in the course of hostilities in a war”, “in the course of an occupation”, “in pursuing a policy associated with the conduct of a war or with an occupation” or, “on behalf of, or in the interests of, a power conducting a war or engaged in an occupation”. 
Australia, War Crimes Act, 1945, as amended in 2001, 1945, Section 5.
War itself is defined as “(a) a war, whether declared or not; (b) any other armed conflict between countries; or (c) a civil war or similar armed conflict (whether or not involving Australia or a country allied or associated with Australia) in so far as it occurred in Europe in the period beginning on 1 September 1939 and ending on 8 May 1945”. 
Australia, War Crimes Act, 1945, as amended in 2001, 1945, Section 7(1).
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides:
A person who, in Australia or elsewhere, commits, or aids, abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional] Protocol I is guilty of an indictable offence. 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia
Australia’s ICC (Consequential Amendments) Act (2002) contains a list of acts qualified as “Genocide” (Sections 268.3–268.7), “Crimes against humanity” (Sections 268.8–268.23), “War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions” (Sections 268.24–268.34), “Other serious war crimes that are committed in the course of an international armed conflict” (Sections 268.35–268.68), “War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict” (Sections 268.69–268.76), “War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict” (Sections 268.77–268.94), “War crimes that are grave breaches of Protocol I to the Geneva Conventions” (Sections 268.95–268.101). The Act also includes the penalty to be imposed for each of these crimes. 
Australia, ICC (Consequential Amendments) Act, 2002, Sections 268.3–268.101.
Austria
Austria’s Penal Code (1974) provides: “Not only the immediate perpetrator commits a crime, but also anybody who is instigating another to commit a crime, as well as anybody who makes any contribution to somebody else’s criminal act.” 
Austria, Penal Code, 1974, Article 12.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) is applicable “in case Azerbaijan is a participant of intergovernmental armed conflict (war) or in case of internal armed conflict in its territory, between Azerbaijan Republic and two or more parties, even if one of these parties does not confirm the existence of such a conflict” and provides for the protection of civilian persons, POWs, the wounded and the sick as well as the missing and the dead. It states: “For the violation of the provisions of this law, accused persons are subject to disciplinary, administrative or criminal liability in accordance with the legislation of Azerbaijan Republic.” 
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Articles 1 and 31.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides for punishment, inter alia, in case of war crimes (Article 57). In the chapter entitled “War crimes”, the Code contains further provisions criminalizing: the use of “mercenaries” (Article 114); “violations of [the] laws and customs of war” (Article 115); “violations of the norms of international humanitarian law in time of armed conflict” (Article 116); “negligence or giving criminal orders in time of armed conflict” (Article 117); “pillage” (Article 118); and “abuse of protected signs” (Article 119). 
Azerbaijan, Criminal Code, 1999, Articles 57 and 114–119.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) provides:
The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely: -
(a) Crimes against humanity …
(b) Crimes against peace …
(c) Genocide …
(d) War Crimes …
(e) violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949;
(f) any other crimes under international law;
(g) attempt, abatement or conspiracy to commit any such crimes;
(h) complicity in or failure to prevent commission of any such crimes. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2).
Barbados
The Geneva Conventions Act (1980) of Barbados provides:
(1) A grave breach of any of the Geneva Conventions of 1949 that would, if committed in Barbados, be an offence under any law of Barbados, constitutes an offence under that law when committed outside Barbados.
(2) A person who commits a grave breach of any of the Geneva Conventions of 1949 … may be tried and punished. 
Barbados, Geneva Conventions Act, 1980, Section 3(1) and (2).
Belarus
Belarus’s Criminal Code (1999), in a chapter entitled “War crimes and other violations of the laws and customs of war”, provides, inter alia, for the punishment of specified acts, such as “mercenary activities” (Article 133), “use of weapons of mass destruction” (Article 134), “violations of the laws and customs of war” (Article 135), “criminal offences against the norms of international humanitarian law during armed conflicts” (Article 136), or “abuse of signs protected by international treaties” (Article 138). 
Belarus, Criminal Code, 1999, Articles 132–138.
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides a list of punishable acts or omissions (“grave breaches”) committed against persons protected by the 1949 Geneva Conventions and both the 1977 Additional Protocol I and the 1977 Additional Protocol II. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(3).
The 1993 law was amended in 1999 to expand the range of crimes to which it applied. Since then, the crime of genocide and crimes against humanity also constitute punishable crimes under this Law. 
Belgium, , Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(1) and (2).
Bosnia and Herzegovina
The Federation of Bosnia and Herzegovina’s Criminal Code (1998) contains provisions regarding the punishment of certain acts, some of them committed “in time of war or armed conflict”, such as: “war crimes against civilians” (Article 154); “war crimes against the wounded and sick” (Article 155); “war crimes against prisoners of war” (Article 156); “organizing a group and instigating the commission of genocide and war crimes” (Article 157); “unlawful killing or wounding of the enemy” (Article 158); “marauding” (Article 159); “using forbidden means of warfare” (Article 160); “violating the protection granted to bearers of flags of truce” (Article 161); “cruel treatment of the wounded, sick and prisoners of war” (Article 163); “destruction of cultural and historical monuments” (Article 164); and “misuse of international emblems” (Article 166). 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Articles 154–161 and 163–166.
The Republika Srpska’s Criminal Code (2000) contains the same provisions. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Articles 433–445.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states:
A person who planned, instigated, ordered, perpetrated or otherwise aided and abetted in the planning, preparation or execution of a criminal offence referred to in Articles 171 (Genocide), 172 (Crimes against Humanity), 173 (War Crimes against Civilians), 174 (War Crimes against the Wounded and Sick), 175 (War Crimes against Prisoners of War), 177 (Unlawful Killing or Wounding of the Enemy), 178 (Marauding the Killed and Wounded at the Battlefield) and 179 (Violating the Laws and Practices of Warfare) of this Code, shall be personally responsible for the criminal offence. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 180(1); see also Article 179(1).
Botswana
Botswana’s Geneva Conventions Act (1970) provides:
Any person, whatever his nationality, who, whether in or outside Botswana, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the scheduled conventions as is referred to in the following articles respectively of those conventions, that is to say [Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV] shall be guilty of an offence and [be punished]. 
Botswana, Geneva Conventions Act, 1970, Section 3(1).
Bulgaria
Bulgaria’s Penal Code (1968), as amended in 1999, provides for the punishment of a list of specified acts entitled “Crimes against the laws and customs of waging war”. 
Bulgaria, Penal Code, 1968, as amended in 1999, Articles 410–415.
Burundi
Burundi’s Military Penal Code (1980) states:
Without prejudice to the repression of offences which constitute infractions of common law, the infractions of the laws and customs of war [and] of international conventions on matters related to war are punished according to the provisions of the present code. 
Burundi, Military Penal Code, 1980, Article 1.
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
Any person who conceives, plans, conspires, orders, incites to commit, attempts to commit or commits one of the offences proscribed by Articles 2, 3 and 4 of the present law, is culpable of the crime of genocide, a crime against humanity [and/or] a war crime, respectively, according to the modes of criminal participation as stipulated by Articles 67 to 69 of the penal code. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 5.
Burundi
Burundi’s Penal Code (2009) states:
Article 201
Anyone who conceives or plans a crime of genocide, crime against humanity and war crime is punishable by penal servitude for life.
Article 202
A person who orders or publicly incites the commission of a crime of genocide, crime against humanity or war crime shall be subject to the penalty of penal servitude for life. 
Burundi, Penal Code, 2009, Articles 201–202.
The Code also states:
Article 37
[The following persons] shall be considered as perpetrators:
1°. Those who personally took direct part in the perpetration of the offence or who directly cooperated for its perpetration;
2°. Those who, by any action, aided the perpetration of the offence, which would not have taken place without their assistance.
Article 38
Those who, without directly participating in the perpetration of an offence and without providing an indispensable assistance to its perpetration, [have committed the following actions] shall be considered as accomplices of the offence:
1°. Caused the action [commission of the offence] by means of a gift, promise, threat, abuse of authority and power, culpable subterfuge or artifice, or gave instructions for its commission;
2°. Procured weapons, instruments, or any other means used for the action, with knowledge that they would be used for such purpose;
3°. With knowledge, aided by all means or assisted the perpetrator(s) with the acts which prepared, facilitated or consummated the action;
4°. With knowledge of their criminal conduct, habitually provided accommodation or a place for refuge or meeting to one or more criminals;
5°. Directly caused the perpetrator(s) to commit the action, either by incitement to commit the offence through speeches given in meetings or public places, or by written or printed texts which were sold, distributed, put up for sale or exposed in places of public meetings or in placards or notices exhibited in a place where they can be seen by the public;
6°. Concealed or aided the criminals in accordance with the conditions provided for in article 305 [regarding the concealment of objects obtained through an offence].
Article 39
The person who intentionally instigated another person to commit an offence shall be subject to the same penalty applicable to the perpetrator of the offence in case the latter is committed. 
Burundi, Penal Code, 2009, Articles 37–39.
The Code also states:
Article 27
… [C]oercion shall never be used as a defence argument regarding genocide, crimes against humanity, war crimes and other crimes provided for under international law; it might only be taken into consideration for a reduction of the penalty.
Article 31
2°. …
… [S]tate of necessity shall never be used as a defence argument regarding genocide, crimes against humanity, war crimes and other crimes provided for under international law; it might only be taken into consideration for a reduction of the penalty. 
Burundi, Penal Code, 2009, Articles 27 and 31(2°).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001) provides:
Any Suspect who planned, instigated, ordered, aided and abetted, or committed the crimes referred to in Articles 3, 4, 5, 6, 7, and 8 of this law shall be individually responsible for the crime.
The position or rank of any Suspect shall not relieve such person of criminal responsibility or mitigate punishment. 
Cambodia, Law on the Establishment of the ECCC, 2001, Article 29.
The Articles referred to deal with “any of the crimes set forth in the 1956 Penal Code”, such as: homicide, torture and religious persecution (Article 3); genocide (Article 4); crimes against humanity (Article 5); grave breaches of the 1949 Geneva Conventions (Article 6); destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property (Article 7); and crimes against internationally protected persons as set forth in the Convention on Crimes against Internationally Protected Persons (Article 8), all of these acts having been committed during the period from 1975 to 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, Articles 3–8.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides:
Any Suspect who planned, instigated, ordered, aided and abetted, or committed the crimes referred to in article 3 new, 4, 5, 6, 7, and 8 of this law shall be individually responsible for the crime.
The position or rank of any Suspect shall not relieve such person of criminal responsibility or mitigate punishment. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 29.
The articles referred to deal with homicide, torture and religious persecution as set forth in Cambodia’s Penal Code of 1956 (Article 3 new), genocide (Article 4), crimes against humanity (Article 5), grave breaches of the 1949 Geneva Conventions (Article 6), destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property (Article 7), and crimes against internationally protected persons pursuant to the 1961 Vienna Convention on Diplomatic Relations (Article 8), provided that these acts have been committed during the period 17 April 1975–6 January 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Articles 3 new-8.
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides:
Every person who, whether within or outside Canada, commits a grave breach referred to in Article 50 [of the 1949 Geneva Convention I], Article 51 [of the 1949 Geneva Convention II], Article 130 [of the 1949 Geneva Convention III], Article 147 [of the 1949 Geneva Convention IV] or Article 11 or 85 [of the 1977 Additional Protocol I] is guilty of an indictable offence and [is liable to punishment]. 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) states that for offences within Canada, “[e]very person is guilty of an indictable offence who commits (a) genocide; (b) a crime against humanity; or (c) a war crime”. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Article 4(1).
The Act also states: “Every person who, either before or after coming into force of this section, commits outside Canada (a) genocide, (b) a crime against humanity, or (c) a war crime is guilty of an indictable offence and may be prosecuted.” 
Canada, Crimes against Humanity and War Crimes Act, 2000, Article 6.
The Act further states: “War crime means an act or omission committed during an armed conflict that … constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts.” It specifies that the crimes described in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law”. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Article 4(3) and (4).
Central African Republic
The Central African Republic’s Penal Code (2010) states:
Art.158: The crime of genocide, war crimes and crimes against humanity are punished with the death penalty.
Art.160: Legal persons can be declared criminally responsible for the crime of genocide, war crimes, crimes against humanity [and] crimes of terrorism under the conditions stipulated in article 10 of this code. 
Central African Republic, Penal Code, 2010, Articles 158 and 160.
Article 10 of the Code states:
Legal persons, excluding the State, are criminally responsible, as foreseen by laws or regulations, for offences committed in their name by their organs or representatives.
The criminal responsibility of legal persons does not exclude that of natural persons, authors or accomplices to the same acts. 
Central African Republic, Penal Code, 2010, Article 10.
Chile
Chile’s Code of Military Justice (1925), under the heading “Offences against international law”, provides, inter alia, for the punishment of certain war crimes. 
Chile, Code of Military Justice, 1925, Articles 261–264.
China
China’s Law Governing the Trial of War Criminals (1946) contains a list of punishable offences such as war crimes. 
China, Law Governing the Trial of War Criminals, 1946, Article 3.
Colombia
Colombia’s Penal Code (2000), under the heading “Crimes against persons and objects protected by international humanitarian law”, contains a list of provisions concerning the punishment of specified crimes committed “in the event and during an armed conflict”. The persons protected are: civilians; persons not taking part in the hostilities and the civilians in the power of the adverse party; the wounded, sick and shipwrecked placed hors de combat; combatants who have laid down their arms, because of capture, surrender, or any similar reason; persons considered as stateless or refugees before the beginning of the conflict; and persons protected under the 1949 Geneva Conventions and the 1977 Additional Protocols I and II. 
Colombia, Penal Code, 2000, Articles 135–164.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) provides for the punishment of the authors and perpetrators of acts such as:
a) grave breaches of the Geneva Conventions …
b) other grave breaches of the laws and customs applicable to international armed conflicts in the scope established by international law;
c) grave breaches of article 3 common to the four Geneva Conventions …
d) and other grave breaches recognized as applicable to armed conflicts which are not of an international character, within the scope established by international law. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Articles 4, 5, 10 and 11.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands, referring to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III, 1 Article 47 of the 1949 Geneva Convention IV and Articles 11(4) and 85(2), (3) and (4) of the 1977 Additional Protocol I, provides:
Any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I] is guilty of an offence. 
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Costa Rica
Costa Rica’s Penal Code (1970), as amended in 2002, provides for the punishment of offences such as acts of genocide and “other punishable acts against human rights and international humanitarian law, provided for in the treaties adhered to by Costa Rica or in this Code”. 
Costa Rica, Penal Code, 1970, as amended in 2002, Article 7.
Under another provision entitled “War crimes”, the Penal Code also provides for the punishment of:
Whoever, in the event of an armed conflict, commits or orders to be committed acts which can be qualified as grave breaches or war crimes, in conformity with the provisions of international treaties to which Costa Rica is a party, regarding the conduct of hostilities, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilian persons and the protection of cultural property, [applicable] in cases of armed conflict, and under any other instrument of international humanitarian law. 
Costa Rica, Penal Code, 1970, as amended in 2002, Article 378.
The Penal Code as amended further provides for the punishment of crimes against humanity. 
Costa Rica, Penal Code, 1970, as amended in 2002, Article 379.
Côte d’Ivoire
Côte d’Ivoire’s Penal Code (1981), as amended in 1995, in a chapter dealing with offences against the law of nations, provides for the punishment of certain acts committed “in time of war or occupation”, such as “crimes against the civilian population” (Article 138) and “crimes against prisoners of war” (Article 139). It further provides for the punishment of the illegal use of distinctive signs and emblems (Article 473). 
Côte d’Ivoire, Penal Code as amended, 1981, Articles 138–139 and 473.
Croatia
Croatia’s Criminal Code (1997), in a chapter entitled “Criminal offences against values protected by international law”, provides for a list of punishable acts committed by “whoever” and some of them “during war, armed conflict or occupation”, such as: “war crimes against the civilian population” (Article 158); “war crimes against the wounded and sick” (Article 159); “war crimes against prisoners of war” (Article 160); “unlawful killing and wounding of the enemy” (Article 161); “unlawful taking of the belongings of those killed or wounded on the battlefield” (Article 162); “forbidden means of combat” (Article 163); “injury of an intermediary” (Article 164); “brutal treatment of the wounded, sick and prisoners of war” (Article 165); “unjustified delay in the repatriation of prisoners of war” (Article 166); “destruction of cultural objects or of facilities containing cultural objects” (Article 167); and “misuse of international symbols” (Article 168). 
Croatia, Criminal Code, 1997, Articles 158–168.
The Criminal Code, as amended in 2006, further recognizes individual criminal responsibility in the following provisions:
Article 187
(1) Whoever organizes a group of people or in some other way joins three or more persons in common action for the purpose of committing the criminal offences referred to … shall be punished …
Article 187a
Whoever procures or makes functional the means, removes obstacles, provides and ensures pecuniary and other financial means, makes a plan or arrangements with others or undertakes any other action to create the conditions enabling the direct perpetration of criminal offences referred to … shall be punished. 
Croatia, Criminal Code, 1997, as amended in June 2006, Articles 187(1) and 187a.
Cuba
Cuba’s Military Criminal Code (1979), in a chapter entitled “Offences committed during combat actions”, provides for the punishment of certain acts such as: “mistreatment of prisoners of war” (Article 42); “plundering” (Article 43); “violence against the population of the area of military activities” (Article 44); and “prohibited use of banners or symbols of the Red Cross” (Article 45). 
Cuba, Military Criminal Code, 1979, Articles 42–45.
Cyprus
Cyprus’s Geneva Conventions Act (1966), referring to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV, provides:
Any person who, in spite of nationality, commits in the Republic or outside the Republic, any serious violation or takes part, or assists or incites another person in the commission of serious violations of the Geneva Conventions … shall be guilty of an offence and in case of conviction … be liable [to punishment]. 
Cyprus, Geneva Conventions Act, 1966, Section 4(1).
Cyprus
Cyprus’s Additional Protocol I Act (1979) provides:
Any person who, in spite of nationality, commits in the Republic or outside the Republic any serious violation of the provisions of [the 1977 Additional Protocol I], or takes part or assists or incites another person in the commission of such a violation, shall be guilty of an offence and in case of conviction … be liable [to punishment]. 
Cyprus, Additional Protocol I Act, 1979, Section 4(1).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, under the heading “Crimes against humanity”, provides for the punishment of certain offences such as: “genocide” (Article 259); “torture and other inhuman and cruel treatment” (Article 259a); “use of a forbidden weapon or an unpermitted form of combat” (Article 262); “wartime cruelty” (Article 263); “persecution of a population” (Article 263a); “plunder in a theatre of war” (Article 264); and “misuse of internationally recognized insignia and state insignia” (Article 265). 
Czech Republic, Criminal Code, 1961, as amended in 1999, Articles 259–259(a) and 262–265.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, contains provisions for the punishment of a list of offences such as war crimes which are applicable “in time of war or in an area where a state of siege or a state of emergency has been proclaimed”. 
Democratic Republic of the Congo, Code of Military Justice, 1972, as amended in 1980, Articles 436, 455, 472 and 522–526.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Dominican Republic
The Dominican Republic’s Code of Military Justice (1953) provides for the punishment of a soldier who infringes certain rules of the LOAC, notably against prisoners of war, hospitals, temples or parlementaires. 
Dominican Republic, Code of Military Justice, 1953, Article 201.
El Salvador
El Salvador’s Code of Military Justice (1934) provides for the punishment of various offences committed “in time of international or civil war”, such as arson, destruction of property, plundering of inhabitants or acts of violence against persons (Article 68). It also provides for the punishment of other acts committed “in time of international war”, including offences against prisoners of war, attacks on medical units, transports or personnel, abuse of the red cross, destruction of cultural property, offences against parlementaires (Article 69), despoliation of the wounded or prisoners (Article 70), despoliation of the dead (Article 71), and unnecessary requisition of buildings and objects (Article 72). 
El Salvador, Code of Military Justice, 1934, Articles 68–72.
El Salvador
El Salvador’s Penal Code (1997) provides for the punishment of acts of “Genocide” (Article 361), “Violations of the laws and customs of war” committed “during an international or a civil war” (Article 362), “Violations of the duties of humanity” (Article 363), and “Enforced disappearance of persons” (Article 364). 
El Salvador, Penal Code, 1997, Articles 361–364.
El Salvador
El Salvador’s Penal Code (1997), as amended in 2008, which contains a section on the violations of the laws or customs of war, states in the general section on criminal responsibility:
Criminal Responsibility
Art. 32.- Authors, instigators and accomplices are criminally responsible for the offence committed.
Authors can be either direct [authors] or [authors that are] perpetrator-by-means.
Direct Authors and Co-authors
Art. 33.- Direct authors are those who commit an offence on their own or with others.
Perpetrator-by-means
Art. 34.- Perpetrator-by-means are those committing an offence through another person that they use as an instrument. …
Instigators
Art. 35.- Anyone who with intent encourages another person to commit an offence is considered an instigator.
Accomplices
Art. 36.- [The following] … [a]re considered accomplices:
1) Anyone cooperating, in any way necessary, with the author or authors, and without which it would not have been possible to commit the offence; and
2) Anyone cooperating in any way in the commission of an offence. 
El Salvador, Penal Code, 1997, as amended in 2008, Articles 32–36.
The Penal Code further states in the general section: “Criminal law will be equally applicable to all persons who at the moment of the act were over the age of eighteen. Persons under this age will be subjected to a special regime.” 
El Salvador, Penal Code, 1997, as amended in 2008, Article 17.
Estonia
Estonia’s Penal Code (2001) provides that the author of crimes against humanity (paragraph 89), genocide (paragraph 90), crimes against peace (paragraphs 91–93) or war crimes (paragraphs 94–109) shall be punished. 
Estonia, Penal Code, 2001, §§ 89–109.
The Penal Code further provides:
(1) Offences committed in times of war which are not provided for under this section [dealing with war crimes] are punishable on the basis of other provisions of the special part of this Code.
(2) A person who has committed an offence provided for under this section shall be punished only for the commission of a war crime even if the offence comprises the necessary elements of other offences provided for in the special part of this Code. 
Estonia, Penal Code, 2001, § 94.
Ethiopia
Ethiopia’s Penal Code (1957), under the heading “Offences against the law of nations”, provides for a list of punishable acts committed by “whosoever” such as: “war crimes against the civilian population” (Article 282); “war crimes against wounded, sick or shipwrecked persons” (Article 283); “war crimes against prisoners and interned persons” (Article 284); “pillage, piracy and looting” (Article 285); “provocation and preparation [of the above-mentioned acts]” (Article 286); “dereliction of duty towards the enemy” (Article 287); “use of illegal means of combat” (Article 288); “maltreatment of, or dereliction of duty towards, wounded, sick or prisoners” (Article 291); “denial of justice” (Article 292); “hostile acts against international humanitarian organizations” (Article 293); “abuse of international emblems and insignia” (Article 294); and “hostile acts against the bearer of a flag of truce” (Article 295). Some of these provisions specify that the acts concerned be committed “in time of war, armed conflict (or occupation)” and/or “in violation of the rules of public international law”. 
Ethiopia, Penal Code, 1957, Articles 282–288 and 291–295.
According to the Report on the Practice of Ethiopia (1998), acts which constitute “war crimes in the context of [an] international armed conflict would also be crimes in the context of [an] internal armed conflict”. 
Report on the Practice of Ethiopia, 1998, Chapter 6.4.
Ethiopia
In 1992, the transitional government of Ethiopia adopted the Special Public Prosecutor’s Office Establishment Proclamation which provides:
Whereas … it is essential that higher officials of the WPE [Workers’ Party of Ethiopia] and members of the security and armed forces who have been detained at the time the EPRDF [Ethiopian People’s Revolutionary Democratic Front] assumed control of the Country and thereafter and who are suspected of having committed offences … must be brought to trial;
Whereas it is necessary to provide for the establishment of a Special Public Prosecutor’s Office that shall conduct prompt investigation and bring to trial detainees as well as those persons who are responsible for having committed offences and are at large both within and without the Country;
Now therefore … it is hereby proclaimed as follows:
The Special Public Prosecutor’s Office … is hereby established.
The Office shall, in accordance with the law, have the power to conduct investigation and institute proceedings in respect of any person having committed or responsible for the commission of an offence by abusing his position in the party, the government or mass organization under the Dergue-WPE regime. 
Ethiopia, Special Public Prosecutor’s Office Establishment Proclamation, 1992, preamble and Articles 2(1) and 6.
Fiji
Fiji’s Biological and Toxin Weapons Convention Decree (2011) provides:
Prohibitions
6. It is an offence for a person to develop, produce, manufacture, possess, stockpile, acquire, retain, import, export, re-export, transport, transit, trans-ship, transfer to any recipient directly or indirectly, or use –
(a) any microbial or other biological agent, or any toxin whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; or
(b) any weapon, equipment, means of delivery, designed to use or share such an agent or toxin for hostile purposes or in armed conflict.
Aiding and abetting
7. No person shall aid, abet, encourage, assist, counsel, procure, incite or finance the commission of, or attempt or conspire to commit, an offence under section 6.
Licensing
8. – (1) Except as hereby authorised or specifically licensed under any written law, no person shall develop, produce, manufacture, possess, stockpile, acquire, retain, transport, transfer or use any microbial or other biological agent, any toxin or any related equipment designated in the regulations.
(3) Any person who, aids, abets, encourages, assists, counsels, procures, incites or finances the commission of, or attempts or conspires to commit, is guilty of an offence under this section.
Offences
27. – (1) Every person who contravenes section 6 or 7 is guilty of an offence under the Crimes Decree 2009 and is liable upon conviction –
(a) in the case of an individual, imprisonment for a term not exceeding 14 years or to a fine not exceeding 150 penalty units or both;
(b) in the case of a body corporate, a fine not exceeding 500 penalty units.
(2) Where an offence under subsection (1) which is committed by a body corporate is proved to have been committed with the consent and connivance or, to be attributable to any negligence on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in such capacity, he or she as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished in accordance with subsection (1)(a).
(3) Every person who contravenes section[] 8, … is guilty of an offence and liable on conviction to –
(a) in the case of an individual, imprisonment for a term not exceeding 14 years or to a fine no[t] exceeding 150 penalty units or both;
(b) in the case of a body corporate, a fine not exceeding 500 penalty units.
(4) Where an offence under subsection (3) which is committed by a body corporate is proved to have been committed with the consent and connivance or to be attributable to any negligence on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished in accordance with subsection (3)(a). 
Fiji, Biological and Toxin Weapons Convention Decree, 2011, Articles 6–8 and 27.
Fiji
Fiji’s Anti-Personnel Mines Decree (2011) states:
PART 5 – PROHIBITIONS AND OFFENCES
Prohibited conduct
23. – (1) Subject to section 22 [on permission to retain or transfer], no person shall –
(a) use an anti-personnel mine;
(b) develop or produce an anti-personnel mine;
(c) acquire an anti-personnel mine;
(d) possess, retain or stockpile an anti-personnel mine; and/or
(e) transfer to anyone, either directly or indirectly, an anti-personnel mine.
(2) Subject to section 26, no person shall assist, encourage or induce, in any way, anyone to engage in conduct referred to in subsection (1) above.
Offences and Penalties
24. – (1) A person is guilty of an offence if the person –
(a) places an anti-personnel mine under, on or near the ground or other surface area; or
(b) knowingly is in the possession of an anti-personal mine; or
(c) develops, produces, or otherwise acquires an anti-personnel mine; or
(d) stockpiles anti-personnel mines; or
(e) transfer[s] ownership or control of an anti-personnel mine; whether directly or indirectly, to another person.
(2) Any person who contravenes section 24 shall be guilty of an offence and liable upon conviction to –
(a) in the case of an individual, imprisonment for a term not exceeding 14 years, and
(b) in the case of a body corporate, a fine not exceeding 500 penalty units.
(3) Where an offence under subsection (1) which is committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any negligence on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished in accordance with subsection (3)(a).
(4) Any court which convicts a person under subsections 3(a) and (b) may order that the anti-personnel mine or component part used or otherwise involved in the commission of the offence be forfeited to the State.
Extra-territorial application
25. Section 24 extends to conduct outside the territory of Fiji, the citizens of Fiji and bodies corporate incorporated or registered under the laws of Fiji.
Exceptions: conduct which is permitted
26. Section 23 does not apply to –
(a) the placement, possession, retention or transfer of an anti-personnel mine in accordance with a permission in force under section 22;
(b) the possession, retention or transfer of an anti-personnel mine by a member of the Republic of Fiji Military Forces, a police officer, a court official, a customs official or any other such person appointed by the Minister by notice in writing in the course of that person’s duties for the purpose of –
(i) the conduct of criminal proceedings;
(ii) rendering an anti-personnel mine harmless;
(iii) retaining an anti-personnel mine for future destruction; and
(iv) delivering [an] anti-personnel mine to [an] appropriate armed forces unit for destruction. 
Fiji, Anti-Personnel Mines Decree, 2011, Articles 23–26.
Finland
Finland’s Revised Penal Code (1995) contains a chapter entitled “War crimes and crimes against humanity” and therein provides for the punishment of individuals who commit acts listed under the chapter. In some of the provisions in this chapter the Revised Penal Code specifies that the acts be committed “in an act of war” (Section 1) or punishes “violations of human rights in a state of emergency”, defined as violations of “the rules on the protection of the wounded, the sick or the distressed, the treatment of prisoners of war and the protection of the civilian population, which … are to be followed during war, armed conflict or occupation” (Section 4). 
Finland, Revised Penal Code, 1995, Chapter 11, Sections 1 and 4.
France
France’s Ordinance on Repression of War Crimes (1944) provides for the prosecution of certain persons having committed specific acts from the opening of hostilities. 
France, Ordinance on Repression of War Crimes, 1944, Article 1.
France
France’s Penal Code (1992) provides for the punishment of a list of certain acts such as genocide and crimes against humanity and also provides for a special provision in case such crimes are committed “in times of war”. 
France, Penal Code, 1992, Articles 211(1)–212(3).
France
France’s Laws on Cooperation with the ICTY (1995) and with the ICTR (1996) provide for the punishment of authors and accomplices of serious violations of IHL. 
France, Law on Cooperation with the ICTY, 1995, Article 2; Law on Cooperation with the ICTR, 1996, Article 2.
Georgia
Georgia’s Law on the Status of Military Servicemen (1998) states: “A military serviceman is subject to … criminal liability taking into account the nature and severity of the committed offences.” 
Georgia, Law on the Status of Military Servicemen, 1998, Article 24(1).
Georgia
Georgia’s Criminal Code (1999), in a part entitled “Crimes against peace and security of mankind and international humanitarian law”, provides a list of punishable offences such as: “genocide” (Article 407); “crimes against humanity” (Article 408); “mercenaries” (Article 410); “wilful breaches of norms of international humanitarian law committed in armed conflict” (Article 411); “wilful breaches of norms of international humanitarian law committed in international or internal armed conflict with the threat to health or causing bodily injury” (Article 412); and “other breaches of norms of international humanitarian law” (Article 413), the latter including “any other war crime provided for in the [1998 ICC Statute]”. 
Georgia, Criminal Code, 1999, Articles 407–408 and 410–413.
For some of these offences, the Code specifies that the acts be committed “in an international or internal armed conflict”. 
Georgia, Criminal Code, 1999, Articles 411–412.
Germany
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of, inter alia, genocide (Article 1, paragraph 6), crimes against humanity (Article 1, paragraph 7) and war crimes, including: “War crimes against persons” (Article 1, paragraph 8); “War crimes against property and other rights” (Article 1, paragraph 9); “War crimes against humanitarian operations and emblems” (Article 1, paragraph 10); “War crimes consisting in the use of prohibited methods of warfare” (Article 1, paragraph 11); and “War crimes consisting in employment of prohibited means of warfare” (Article 1, paragraph 12). 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, §§ 6–12.
Some of these crimes must be punished when committed “in connection with an international armed conflict or with an armed conflict not of an international character”, some others when committed “in connection with an international armed conflict”. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, §§ 8(1)–(2), 9(1), 10(1)–(2), 11(1)–(2) and 12 (international and non-international armed conflict); Article 1, §§ 8(3), 9(2) and 11(3) (international armed conflict).
Guatemala
Guatemala’s Penal Code (1973) provides for the punishment of certain war crimes, namely those committed against prisoners of war, the civilian population and certain objects. 
Guatemala, Penal Code, 1973, Article 378.
Guinea
Guinea’s Criminal Code (1998) provides for the punishment of certain acts constitutive of violations of IHL, such as pillage, the despoliation of the dead, wounded, sick and shipwrecked in a zone of military operations and the use, in an area of military operations and in violation of the laws and customs of war, of distinctive insignia or emblems defined under international conventions. 
Guinea, Criminal Code, 1998, Articles 569, 570 and 579.
Hungary
Hungary’s Criminal Code (1978), as amended in 1998, under the title “Crimes against humanity”, provides for the punishment of a list of certain acts including genocide and war crimes, such as: “Violence against the civilian population” (Article 158); “War-time looting” (Article 159); “Wanton warfare” (Article 160); “Use of weapons prohibited by international treaty” (Article 160/A); “Battlefield looting” (Article 161); “Violence against a war emissary” (Article 163); and “Misuse of the red cross” (Article 164). Punishment is provided for some of them when committed “in an operational or occupied area” or “violating the rules of the international law of warfare”. 
Hungary, Criminal Code, 1978, as amended in 1998, Sections 155–165.
Hungary
Hungary’s Order of the Minister of Defence on the Adoption of Service Regulations (2005) states that soldiers shall observe “laws pertaining to the service and other internal provision, including regulations regarding warfare and humanitarian rules”. 
Hungary, Order of the Minister of Defence on the Adoption of Service Regulations, 2005, § 6(a).
The Order further states:
10. Soldiers shall respect international regulations on the conduct of warfare and the protection of victims of war, provisions on protection of citizens, assets, environment and nature, as well as the integrity and inviolability of medical organizations and personnel and religious personnel using distinctive signs regulated in international treaties. The appendix of the Service Regulations … contains the most important regulations of the treaties.
19. Soldiers during foreign service on operational territory:
a) shall be acquainted with and enforce the relevant bilateral and multilateral international agreements, the rules of international humanitarian law (see appendix to this Order), laws and customs of the Host State, the regulations regarding armed missions of international organizations, provisions of operational rules binding on Hungarian corps, as well, issued by the operator headquarters, and the content of the prospectus and the job description;
b) as a superior he shall ensure that his subordinates are acquainted with these regulations to the degree necessary to their tasks and status. 
Hungary, Order of the Minister of Defence on the Adoption of Service Regulations, 2005, §§ 10 and 19(a)–(b).
India
India’s Geneva Conventions Act (1960) provides: “If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of a grave breach of any of the [1949 Geneva] Conventions, he shall be punished.” 
India, Geneva Conventions Act, 1960, Section 3.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states:
First: A person who commits a crime within the jurisdiction of this Tribunal shall be individually responsible and liable for punishment in accordance with this Law.
Second: In accordance with this Law, and the provisions of the Penal Code, a person shall be criminally responsible if he [or she]:
A. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that [other] person is criminally responsible;
B. Orders, solicits or induces the commission of such a crime, which has occurred or has been attempted;
C. For the purpose of facilitating the commission of such a crime, aids, abets or by any other means assists in its commission or its attempted commission, including providing the means for its commission;
D. Contributing by any other means, together with a group of persons with a common criminal intent, to the commission or attempted commission of such a crime provided such contribution is intentional and is either:
1. Made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Tribunal;
2. Made with the knowledge of the intention of the group to commit the crime;
F. Attempts to commit such a crime by taking action with the intention of committing it, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who takes an action that precludes the commission or completion of the crime shall not be liable for punishment, nor will he be liable for punishment under this Law if he completely and voluntarily abandons his criminal purpose. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 15(1) and (2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides:
Any person, whatever his or her nationality, who, whether in or outside the State, commits or aids, abets or procures the commission by any other person of a grave breach of any of the [1949 Geneva] Conventions or [the 1977 Additional] Protocol I shall be guilty of an offence and on conviction on indictment [be liable to punishment]. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3.
The Act also provides:
Any person, whatever his nationality, who, in the State, commits, or aids, or abets or procures the commission in the State by any other person of any other minor breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional] Protocol I or [the 1977 Additional] Protocol II shall be guilty of an offence.
Any person, whatever his nationality, who, outside the State, commits, or aids, or abets or procures the commission outside the State by any other person of any other minor breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional] Protocol I or [the 1977 Additional] Protocol II shall be guilty of an offence.
Any person who is guilty of an offence under this section shall be liable [to punishment]. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4.
Ireland
Ireland’s International Criminal Court Act (2006) states: “Any person who commits … a war crime is guilty of an offence.” 
Ireland, International Criminal Court Act, 2006, § 7(1).
Israel
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) provides:
A person who has committed one of the following offences –
(1) done, during the period of the Nazi régime, in an enemy country, an act constituting a crime against the Jewish people;
(2) done, during the period of the Nazi régime, in an enemy country, an act constituting a crime against humanity;
(3) done, during the period of the Second World War, in an enemy country, an act constituting a war crime,
is liable to the death penalty. 
Israel, Nazis and Nazi Collaborators (Punishment) Law, 1950, Section 1(a).
Italy
Italy’s Wartime Military Penal Code (1941) provides for the punishment of a list of various offences related to wartime activity. 
Italy, Wartime Military Penal Code, 1941, Articles 167–230.
Jordan
Jordan’s Military Penal Code (2002) states: “Abettors and accessories in war crimes shall be liable to the same penalty as the principal actor.” 
Jordan, Military Penal Code, 2002, Article 42.
Kazakhstan
Kazakhstan’s Penal Code (1997), in a special part entitled “Crimes against the peace and security of mankind”, provides for the punishment of a list of acts such as: “the use of prohibited means and methods of warfare” in an armed conflict (Article 159); “genocide” (Article 160); “ecocide” (Article 161); “mercenaries” (Article 162); and “attacks against persons or organizations beneficiaries of an international protection” (Article 163). 
Kazakhstan, Penal Code, 1997, Articles 156–164.
Kenya
Kenya’s Geneva Conventions Act (1968) provides:
Any person, whatever his nationality, who, whether within or outside Kenya commits, or aids, abets or procures the commission by any other person of any grave breach of any of the Conventions such as is referred to in the following Articles [i.e. Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV] is guilty of an offence and [shall be sentenced]. 
Kenya, Geneva Conventions Act, 1968, Section 3.
Kyrgyzstan
Kyrgyzstan’s Criminal Code (1997) provides for the punishment of persons committing acts such as: “intentional destruction of historical and cultural monuments” (Article 172); “capture of hostages” (Article 224); “ecocide” (Article 374); the participation of mercenaries “in an armed conflict or in hostilities” (Article 375); and “attacks against persons or institutions under international protection” (Article 376). 
Kyrgyzstan, Criminal Code, 1997, Articles 172, 224 and 374–376.
Latvia
Latvia’s Criminal Code (1998), in a chapter entitled “Crimes against humanity and peace, war crimes and genocide”, provides for the punishment of persons who commit certain offences such as “genocide” (Section 71), “war crimes” (Section 74), “pillage” (Section 76) and “destruction of cultural and national heritage” (Section 79). 
Latvia, Criminal Code, 1998, Sections 71–79.
Lithuania
Lithuania’s Criminal Code (1961), as amended in 1998, in a chapter entitled “War crimes”, contains a list of punishable offences. Some of these offences are to be punished when committed in “violation of humanitarian law in time of war, during an international armed conflict or occupation”. Some others are to be punished when committed “in time of war, during an armed conflict or occupation”. 
Lithuania, Criminal Code, 1961, as amended in 1998, Articles 333–344.
Luxembourg
Luxembourg’s Law on the Repression of War Crimes (1947) provides for the prosecution and sentencing of non-nationals of Luxembourg who have committed war crimes, “if such infringements have been committed at the occasion or under the pretext of war and if they are not justified by the laws and customs of war”. 
Luxembourg, Law on the Repression of War Crimes, 1947, Article 1.
The Law also provides for the prosecution, as co-authors or accomplices, of persons who, “without being superiors in rank of the principal authors, have aided those crimes or offences”. 
Luxembourg, Law on the Repression of War Crimes, 1947, Article 3.
Luxembourg
Luxembourg’s Law on the Punishment of Grave Breaches (1985) provides for the punishment of perpetrators of grave breaches of the 1949 Geneva Conventions as well as of persons who build, hold or transport instruments or other devices in the knowledge that they are intended to be used in the commission of a grave breach. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Articles 1–3.
It also provides for the punishment of persons who, “without being superiors in rank of the principal authors, have aided those crimes or offences”. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 5.
Malawi
Malawi’s Geneva Conventions Act (1967) provides:
Any person, whatever his nationality, who, whether within or without Malawi commits or aids, abets or procures the commission by another person of any such grave breach of any of the Conventions as is referred to in [Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV] shall without prejudice to his liability under any other written law be guilty of an offence and [be liable to imprisonment]. 
Malawi, Geneva Conventions Act, 1967, Section 4(1).
Malaysia
Malaysia’s Geneva Conventions Act (1962) provides:
Any person, whatever his citizenship or nationality, who, whether in or outside the Federation, commits, or aids, abets or procures the commission by another person of any such grave breach of [Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV], shall be guilty of an offence and on conviction thereof [be punished]. 
Malaysia, Geneva Conventions Act, 1962, Section 3(1).
Mali
Mali’s Penal Code (2001) provides for the punishment of the perpetrators of certain crimes such as “crimes against humanity” (Article 29), “genocide” (Article 30) and a list of “war crimes” covering the grave breaches of the 1949 Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict (Article 31). 
Mali, Penal Code, 2001, Articles 29–31.
Mauritius
The Geneva Conventions Act (1970) of Mauritius provides:
Any person who in Mauritius or elsewhere commits, or is an accomplice in the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions shall commit an offence … Any person who commits an offence against this section shall, on conviction, be liable [to punishment]. 
Mauritius, Geneva Conventions Act, 1970, Section 3.
Mexico
Mexico’s Penal Code (1931), as amended in 2000, under the heading “Offences against the duties of humanity”, provides for the punishment of a number of offences committed against certain protected persons and objects. 
Mexico, Penal Code, 1931, as amended in 2000, Article 149.
Mexico
Mexico’s Code of Military Justice (1933), as amended in 1996, under the headings “Crimes against the laws of nations” and “Crimes committed in the exercise of military duties or in relation to them”, provides for the punishment of perpetrators of a number of offences related to war operations. 
Mexico, Code of Military Justice, 1933, as amended in 1996, Articles 208–215 and 324–337.
Under a separate provision, the Code also provides: “Those who immediately commit any act of murder, physical injury or damage to property outside the fighting will be held responsible.” 
Mexico, Code of Military Justice, 1933, as amended in 1996, Article 222.
Mozambique
Mozambique’s Military Criminal Law (1987) provides for the punishment of persons committing crimes listed thereunder, some of them when committed “in an armed confrontation [and in violation of] generally accepted international rules” or “in times of war” and/or “in the theatre of operations”. 
Mozambique, Military Criminal Law, 1987, Articles 83–89.
Netherlands
The Criminal Law in Wartime Act (1952), as amended in 1990, of the Netherlands establishes provisions “concerning offences committed in the event of war and their prosecution”, expressly stating that the term “war” shall include civil war. 
Netherlands, Criminal Law in Wartime Act, 1952, as amended in 1990, preamble and Article 1(3).
Netherlands
The International Crimes Act (2003) of the Netherlands provides for the punishment of
anyone who commits any of the crimes defined in this Act outside the Netherlands, if the suspect is present in the Netherlands … [or] if the crime is committed against a Dutch national; [or] any Dutch national who commits any of the crimes defined in this Act outside the Netherlands. 
Netherlands, International Crimes Act, 2003, Article 2(1).
The crimes defined in the Act are genocide (Article 3), crimes against humanity (Article 4), war crimes committed in international armed conflicts (Article 5) or non-international armed conflicts (Article 6), and torture (Article 8). The Act also punishes “anyone who, in the case of an international or non-international armed conflict, commits a violation of the laws and customs of war other than as referred to in Articles 5 and 6”. 
Netherlands, International Crimes Act, 2003, Articles 3–8.
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides:
Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions or of [the 1977 Additional Protocol I] is guilty of an indictable offence. 
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
New Zealand
New Zealand’s International Crimes and ICC Act (2000) provides: “Every person is liable on conviction on indictment to the penalty specified in subsection (3) who, in New Zealand or elsewhere, commits a war crime”. The Act includes similar provisions with respect to genocide and crimes against humanity. War crimes, genocide and crimes against humanity are defined as the acts specified in the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Sections 9–11.
Nicaragua
Nicaragua’s Military Penal Law (1980) provides for the punishment of persons who commit “mistreatment of prisoners of war (Article 80), “looting” (Article 81), “abuses at the occasion of military activities” (Article 82) and “unlawful use of the symbols of the Red Cross” (Article 83). 
Nicaragua, Military Penal Law, 1980, Articles 80–83.
Nicaragua
Nicaragua’s Military Penal Code (1996), under the headings “Crimes against international humanitarian law” and “Specific crimes against the laws and customs of war”, provides for the punishment of certain offences. Article 47, which is subsidiary to the other articles dealing with violations of IHL, punishes any “military who, during an international or civil war commits serious violations of the international conventions ratified by Nicaragua”. 
Nicaragua, Military Penal Code, 1996, Articles 47–61.
Nicaragua
Nicaragua’s Revised Penal Code (1998) provides for the punishment of “anyone who, during an international or a civil war, commits serious violations of the international conventions relating to the use of prohibited weapons, the treatment of prisoners and other norms related to war”. 
Nicaragua, Revised Penal Code, 1998, Article 551.
Niger
Niger’s Penal Code (1961), as amended in 2003, in a chapter entitled “Crimes against humanity and war crimes”, provides for the punishment of a list of offences such as genocide, crimes against humanity, and war crimes defined as serious offences against the persons and objects protected under the 1949 Geneva Conventions and the 1977 Additional Protocols I and II. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.1–208.8.
Nigeria
Nigeria’s Geneva Conventions Act (1960) provides:
If, whether in or outside the Federation, any person, whatever his nationality, commits, or aids, abets or procures any other person to commit any such grave breach of any of the [1949 Geneva Conventions] … he shall, on conviction thereof, [be punished]. 
Nigeria, Geneva Conventions Act, 1960, Section 3(1).
Norway
Norway’s Military Penal Code (1902) provides for the punishment of “anyone who uses a weapon or means of combat which is prohibited by any international agreement to which Norway has acceded, or who is accessory thereto”. It also provides for the punishment of:
anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in
a) the Geneva Conventions of 12 August 1949 concerning the amelioration of the conditions of the wounded and sick in armed forces in the field, the amelioration of the conditions of wounded, sick and shipwrecked members of armed forces at sea, the treatment of prisoners of war, and the protection of civilian persons in time of war,
b) the two additional protocols to these conventions of 10 June 1977. 
Norway, Military Penal Code, 1902, Articles 107–108.
Norway
Norway’s Penal Code (1902), as amended in 2008, states:
Any person who conspires with another person to commit a criminal offence mentioned in sections 101 to 107 [genocide, crimes against humanity and war crimes] is liable to imprisonment for a term not exceeding 10 years. The same applies to any person who directly and publicly incites another person to commit such an offence. 
Norway, Penal Code, 1902, as amended in 2008, § 108.
Papua New Guinea
Papua New Guinea’s Geneva Conventions Act (1976) provides: “A person who, in Papua New Guinea or elsewhere, commits a grave breach of any of the Geneva Conventions is guilty of an offence.” 
Papua New Guinea, Geneva Conventions Act, 1976, Section 7(2).
Paraguay
Paraguay’s Military Penal Code (1980), under the heading “Provisions with regard to times of war”, contains a list of offences for which it provides punishment. 
Paraguay, Military Penal Code, 1980, Articles 282–296.
Paraguay
Paraguay’s Penal Code (1997) provides for the punishment of offences such as “torture” (Article 309), “genocide” (Article 319) and a list of “war crimes” (Article 320), specifying with respect to “war crimes” that they be committed “in violation of international laws of war, armed conflict or military occupation”. 
Paraguay, Penal Code, 1997, Articles 309 and 319–320.
Peru
Peru’s Code of Military Justice (1980), in a part entitled “Violations of the law of nations”, provides for the punishment of a list of offences, specifying that some of them be committed “in times of war”. 
Peru, Code of Military Justice, 1980, Articles 91–96.
Philippines
The War Crimes Trial Executive Order of the Philippines (1947) provides for the punishment of offenders having committed certain acts, including “violations of the laws and customs of war” and other more specified acts committed “before or during the war … whether or not in violation of the local laws”. 
Philippines, War Crimes Trial Executive Order, 1947, § II(b)(2) and (3).
Poland
Poland’s Penal Code (1997), in a special part entitled “Offences against peace, humanity and war offences”, provides for the punishment of certain acts, some of them when committed “during hostilities” or “in violation of international law”, such as internationally prohibited acts against certain specific protected persons – including persons “who, during hostilities, enjoy international protection” – and objects, as well as the use of means or methods of combat prohibited by international law. 
Poland, Penal Code, 1997, Articles 117–126.
Portugal
Portugal’s Penal Code (1996), under the headings “War crimes against civilians” and “Destruction of monuments”, provides for the punishment of certain offences committed “in times of war, of armed conflict or occupation”. 
Portugal, Penal Code, 1996, Articles 241–242.
Republic of Moldova
The Republic of Moldova’s Penal Code (1961) contains provisions which provide for the punishment of perpetrators of certain acts such as: “abusive use of the emblem and signs of the Red Cross and the Red Crescent” (Article 217); “violence against the civilian population in areas of military operations” (Article 268); “bad treatment of prisoners of war” (Article 269); and “illegal wearing and abusive use of signs of the Red Cross and Red Crescent in areas of military action” (Article 270). 
Republic of Moldova, Penal Code, 1961, Articles 217 and 268–270.
Republic of Moldova
The Republic of Moldova’s Penal Code (2002) provides for the punishment of certain offences such as: “genocide” (Article 135), “ecocide” (Article 136); “inhuman treatments” (Article 137); “violations of international humanitarian law” committed “during an armed conflict or hostilities” (Article 138); “mercenary activity … in an armed conflict or military hostilities” (Article 141); “use of prohibited means and methods of warfare … during an armed conflict” (Article 143); “unlawful use of the red cross signs” (Article 363); “pillage of the dead on the battlefield” (Article 389); “acts of violence against the civilian population in the area of military hostilities” (Article 390); “grave breaches of international humanitarian law … committed during international and internal armed conflicts” (Article 391); and “perfidious use of the red cross emblem as a protective sign during armed conflict” (Article 392). 
Republic of Moldova, Penal Code, 2002, Articles 135–138, 141, 143, 363 and 389–392.
Romania
Romania’s Law on the Punishment of War Criminals (1945) provides for the punishment of more precisely defined “criminals of war”. 
Romania, Law on the Punishment of War Criminals, 1945, Articles I and III.
Romania
Romania’s Penal Code (1968), in provisions entitled “[Unlawful] use of the emblem of the Red Cross” (Article 294), “Use of the emblem of the Red Cross during military operations” (Article 351), “Inhuman treatment” (Article 358) and “Destruction of objects and appropriation of property” (Article 359), provides for the punishment of offences listed thereunder, stating for some of those offences that they be committed “in times of war and in relation with military operations” or “in times of war”. 
Romania, Penal Code, 1968, Articles 294, 351 and 358–359.
Russian Federation
The Russian Federation’s Decree on the Punishment of War Criminals (1965) states:
The peoples of the Soviet Union that suffered losses during the war cannot let fascist barbarians go unpunished. The Soviet State has always proceeded from the universally recognized rules of international law that provide for the inevitable prosecution of Nazi criminals, no matter where and for how long they have been hiding from justice. 
Russian Federation, Decree on the Punishment of War Criminals, 1965, preamble.
It also provides: “Nazi criminals, guilty of most serious crimes against peace and humanity and war crimes, are subject to prosecution and punishment.” 
Russian Federation, Decree on the Punishment of War Criminals, 1965.
Russian Federation
The Russian Federation’s Criminal Code (1996) provides: “Persons who have committed crimes shall … be held criminally responsible.” 
Russian Federation, Criminal Code, 1996, Article 4.
In a chapter entitled “Crimes against the peace and security of mankind” and under a provision entitled “Use of banned means and methods of warfare”, the Code provides for the punishment of “cruel treatment of prisoners of war, deportation of the civilian population, plunder of the national property in the occupied territory and use in a military conflict of means and methods of warfare banned by [international treaties to which the Russian Federation is a party]”. 
Russian Federation, Criminal Code, 1996, Article 356.
The Code further provides for the punishment of offences such as genocide, ecocide, use of, and participation by, mercenaries in an armed conflict or hostilities and assaults on persons or institutions enjoying international protection. 
Russian Federation, Criminal Code, 1996, Articles 357–360.
Rwanda
Rwanda’s Law Setting up Gacaca Jurisdictions (2001) aims
to organize the putting on trial of persons prosecuted for having, between 1 October 1990 and 31 December 1994, committed acts qualified and punished by the Penal Code and which constitute:
a) … crimes of genocide or crimes against humanity as defined by the [1948 Genocide Convention], by the [1949 Geneva Convention IV and the 1977 Additional Protocols], as well as in the [1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity]. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 1.
The Law further provides:
Following acts of participation in offences in question in Article one of this organic law and committed between 1 October 1990 and 31 December 1994, the prosecuted person can be classified in one of the following categories:
Category 1:
a) The person whose criminal acts or criminal participation place among planners, organizers, incitators, supervisors of the crime of genocide or crime against humanity;
b) The person who, acting in a position of authority at the national, provincial or district level, within political parties, army, religious denominations or militia, has committed these offences or encouraged others to commit them;
c) The well-known murderer who distinguished himself in the location where he lived or wherever he passed, because of zeal which has characterized him in killings or excessive wickedness with which they were carried out;
d) The person who has committed rape or acts of torture against person’s sexual parts.
Category 2:
a) The person whose criminal acts or criminal participation place among authors, co-authors or accomplices of deliberate homicides or serious attacks against persons which caused death.
b) The person who, with intention of giving death, has caused injuries or committed other serious violence, but from which the victims have not died.
Category 3:
The person who has committed criminal acts or has become accomplice of serious attacks, without the intention of causing death to victims.
Category 4:
The person having committed offences against assets. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 51.
The Law adds:
The persons in the position of authority at the level of Sector or Cell at the time of genocide are classified in the category corresponding to offences they have committed, but their quality of leaders expose them to the most severe penalty for the defendants who are in the same category. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 52.
Moreover, the Law provides: “for the implementation of this organic law, the accomplice is the person who will have, by any means, assisted to commit offences to persons referred to in Article 51 of this organic law”. 
Rwanda, Law Setting up Gacaca Jurisdictions, 2001, Article 53(1).
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 17
Without prejudice to the provisions of the Penal Code relating to attempt and criminal participation, the following acts are punished by the penalties provided for the offences addressed by this law:
2° a proposal or an offer to commit such a crime and the acceptance of such a proposal or offer;
3° incitement, by way of speech, image or writing, to commit such a crime, even when without effect;
4° an agreement in order to commit such a crime, even when without effect;
5° complicity to commit such a crime, even when without effect;
6° failure to act, within the limits of their possibility to act, on the part of those who had knowledge of orders given to execute such a crime or of acts that started its execution, and could prevent its commission or end it;
7° an attempt to commit such a crime. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 17.
Article 4: Acts constituting the crime of genocide perpetrated against Tutsi and other crimes against humanity within the jurisdiction of the Intermediate Court
The following offences shall be tried at the first instance by the Intermediate Court:
Seychelles
The Geneva Conventions Act (1985) of the Seychelles provides:
Any person, whatever his nationality, who, whether in or outside Seychelles, commits, or aids, abets or procures the commission by another person of, any such grave breach of any of the [1949 Geneva] Conventions … is guilty of an offence and … shall on conviction [be punished]. 
Seychelles, Geneva Conventions Act, 1985, Section 3(1).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol.
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –
(a) article 50 of the First Geneva Convention [on grave breaches];
(b) article 51 of the Second Geneva Convention [on grave breaches];
(c) article 130 of the Third Geneva Convention [on grave breaches];
(d) article 147 of the Fourth Geneva Convention [on grave breaches];
(e) paragraph 4 of article 11 or paragraph 2, 3, or 4 of Article 85 of the First Protocol [on grave breaches].
(2) A person who commits an offence under subsection (1) is liable on conviction –
(a) in the case of a grave breach which involves the willful killing of a person protected by the relevant Convention or Protocol to imprisonment for life;
(b) in the case of any other grave breach, to imprisonment for a term not less than 10 years and not exceeding twenty five years.
(3) A person who in Sierra Leone commits, abets, aids or procures any other person to commit a breach of the Conventions or [1977 Additional] Protocols [I and II] not covered under subsection (1) commits an offence and is liable on conviction to imprisonment for a term not less than 10 years and not exceeding twenty five years.
(4) A citizen of Sierra Leone who outside Sierra Leone commits or aids, abets or procures the commission by another person of a breach of any of the Conventions or [1977 Additional] Protocols [I and II] not covered under subsection (1) commits an offence and is liable on conviction to imprisonment for a term not less than 10 years and not exceeding 25 years. 
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)–(4).
Singapore
Singapore’s Geneva Conventions Act (1973) provides:
Any person, whatever his citizenship or nationality, who, whether in or outside Singapore, commits, aids, abets or procures the commission by any other person of any such grave breach of any [of the 1949 Geneva Conventions] shall be guilty of an offence under this Act and on conviction thereof … [be punished]. 
Singapore, Geneva Conventions Act, 1973, Section 3(1).
Slovakia
Slovakia’s Criminal Code (1961), as amended, under the heading “Crimes against humanity”, provides for the punishment of certain offences such as: “genocide” (Article 259); “torture and other inhuman and cruel treatment” (Article 259a); “use of a forbidden weapon or an unpermitted form of combat” (Article 262); “wartime cruelty” (Article 263); “persecution of a population” (Article 263a); “plunder in a theatre of war” (Article 264); and “misuse of internationally recognized insignia and state insignia” (Article 265). 
Slovakia, Criminal Code, 1961, as amended, Articles 259–259(a) and 262–265.
Slovenia
Slovenia’s Penal Code (1994), in a chapter entitled “Criminal offences against humanity and international law”, provides for a list of punishable acts committed by “whoever” and some of them “during war, armed conflict (or occupation)”, such as: “war crimes against the civilian population” (Article 374); “war crimes against the wounded and sick” (Article 375); “war crimes against prisoners of war” (Article 376); “use of unlawful weapons” (Article 377); “unlawful killing and wounding of the enemy” (Article 379); “unlawful plundering on the battlefield” (Article 380); “infringement of the rights of parlementaires” (Article 381); “maltreatment of the sick and wounded, and of prisoners of war” (Article 382); “unjustified delay in the repatriation of prisoners of war” (Article 383); “destruction of cultural and historical monuments and natural sites” (Article 384); and “abuse of international symbols” (Article 386). 
Slovenia, Penal Code, 1994, Articles 374–386.
South Africa
South Africa’s ICC Act (2002) provides:
Despite anything to the contrary in any other law of the Republic, any person who commits [genocide, a crime against humanity or a war crime] is guilty of an offence and is liable on conviction to a fine or imprisonment. 
South Africa, ICC Act, 2002, §§ 4(1) and 1(vii).
Spain
Under Spain’s Law on Judicial Power (1985), Spanish criminal courts have jurisdiction over offences committed by Spanish nationals and aliens, on Spanish territory or outside it, which constitute genocide or any other offence that, according to international treaties or conventions, must be prosecuted in Spain. 
Spain, Law on Judicial Power, 1985, Article 23(4).
Spain
Spain’s Military Criminal Code (1985) contains a part on “Crimes against the laws and customs of war” and provides for the punishment of soldiers committing acts listed thereunder. 
Spain, Military Criminal Code, 1985, Articles 69–78.
Spain
Spain’s Penal Code (1995) contains chapters entitled “Genocide” and “Offences against protected persons and objects in the event of armed conflict” and provides for the punishment of offences listed thereunder. Protected persons in the meaning of the latter are those protected by the 1949 Geneva Conventions and both 1977 Additional Protocols, as well as those falling within the scope of “whatever other international treaty to which Spain is a party”. The chapter contains several provisions regarding the punishment of certain acts “committed in the event of an armed conflict”. 
Spain, Penal Code, 1995, Articles 607–614.
Spain
Spain’s Penal Code (1995), as amended in 2010, states:
Anyone who, in the event of an armed conflict, commits … any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, the regulation of the means and methods of war, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment. 
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 614.
Sri Lanka
Sri Lanka’s Geneva Conventions Act (2006) states:
2. (1) Any person, whether a citizen of Sri Lanka or not, who within or outside Sri Lanka –
(a) commits or attempts to commit; or
(b) aids, abets, conspires or procures the commission by any other person of, a grave breach in terms of the relevant Articles of the [1949 Geneva] Conventions as are set out in Schedule I, Schedule II, Schedule III and Schedule IV to this Act and are also enumerated in subsection (2) of this section,
shall be guilty of an offence.
3. Subject to the provisions of section 6, every prosecution for an offence in terms of section 2 shall be by way of direct indictment filed by the Attorney-General. 
Sri Lanka, Geneva Conventions Act, 2006, Sections 2-3.
Sweden
Sweden’s Penal Code (1962), as amended in 1998, provides for the punishment of “a person guilty of a serious violation of a treaty or agreement with a foreign power or an infraction of a generally recognized principle or tenet relating to international humanitarian law concerning armed conflicts”. 
Sweden, Penal Code, 1962, as amended in 1998, Chapter 22, § 6.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended, states that the provisions of its chapter dealing with “Offences committed against the law of nations in case of armed conflict” are “applicable in case of declared war and other armed conflicts between two or more States”, and also provide for “the punishment of violations of international agreements if these agreements provide for a wider scope of application” (Article 108). The Code provides for the punishment of offences listed under this chapter, and especially – among other more specific offences – of “anyone who contravenes the prescriptions of international conventions relating to the conduct of hostilities, as well as to the protection of persons and objects, [and] anyone who violates other recognized laws and customs of war”. 
Switzerland, Military Criminal Code, 1927, as amended, Articles 108–114.
Other offences, such as pillage committed in time of war or marauding on the battlefield are also to be punished. 
Switzerland, Military Criminal Code, 1927, as amended, Articles 139–140.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended in 2007, states in a chapter entitled “Offences committed against the law of nations in case of armed conflict”:
1. The provisions of the present chapter apply in case of declared wars and other armed conflicts between two or more States …
2. The provisions of international agreements are also punishable if these agreements provide for a wider scope of application.  
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 108(1)–(2).
The Code further states:
Any person who has contravened the prescriptions of international conventions on the conduct of hostilities and on the protection of persons and objects, [and]
any person who has violated other recognized laws and customs of war must be punished with three years’ or more imprisonment or a monetary penalty unless more severe provisions are applicable or, in less serious cases, with a year imprisonment or less. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 109(1).
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, which also contains a chapter on war crimes, states in the part on general provisions:
Art. 12a
1 A felony or misdemeanour may also be committed by a failure to comply with a duty to act.
2 A person fails to comply with a duty to act if he does not prevent a legal interest protected under criminal law from being exposed to danger or from being harmed even though, due to his legal position, he has a duty to do so …
3 Any person who fails to comply with a duty to act is liable to prosecution only if, on the basis of the elements of the offence concerned, his conduct is, in the circumstances, as culpable as it would have been had he actively committed the offence.
4 The judge can reduce the punishment. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 12a.
The Code further states:
Art. 13
1 Unless the law expressly provides otherwise, a person is only liable to prosecution for a felony or misdemeanour if he commits it wilfully.
2 A person commits a felony or misdemeanour wilfully if he carries out the act in the knowledge of what he is doing and in accordance with his will. A person acts wilfully as soon as he regards the realization of the act as being possible and accepts this.
3 A person commits a felony or misdemeanour through negligence if he fails to consider or disregards the consequences of his conduct due to a culpable lack of care. A lack of care is culpable if the person fails to exercise the care that is incumbent on him in the circumstances and commensurate with his personal capabilities. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 13.
The Code also states:
Art. 21
1 The judge can reduce the penalty if the execution of a crime of a felony or misdemeanour is not pursued to its completion or if the result necessary for the completion of the offence does not occur or could not occur. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 21(1).
The Code further states:
Art. 23
1 Any person who has intentionally incited someone else to commit a felony or a misdemeanour incurs, if the offence has been committed, the penalty applicable to the person who has committed the offence.
2 Any person who has attempted to incite someone else to commit a felony incurs the penalty applicable to the attempt of that felony.
Art. 24
The penalty is reduced for any person who has intentionally assisted another to commit a felony or a misdemeanour. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 23 and 24.
In a chapter on “Felonies or misdemeanours that create a collective danger”, the Code states:
Art. 171b
1 Any person who, in accordance with a plan, carries out specific technical or organizational measures, the nature and extent of which indicate that the offender intends to commit any of the offences listed below shall be liable to a custodial sentence not exceeding five years or to a monetary penalty:
c. War crimes (Art. 111–112d);
2. If the offender, of his own volition, does not complete the preparatory act, he shall not be liable to any penalty.
3. It shall also be an offence for any person to carry out the preparatory acts abroad, provided it was intended to commit the offences in Switzerland. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 171b (1)(c) and (2)–(3).
[footnote in original omitted]
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a title on war crimes, states in the book on general provisions:
Art. 11
1 A felony or misdemeanour may also be committed by a failure to comply with a duty to act.
2 A person fails to comply with a duty to act if he does not prevent a legal interest protected under criminal law from being exposed to danger or from being harmed even though, due to his legal position, he has a duty to do so …
3 Any person who fails to comply with a duty to act is liable to prosecution only if, on the basis of the elements of the offence concerned, his conduct is, in the circumstances, as culpable as it would have been had he actively committed the offence.
4 The judge can reduce the penalty 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 11.
The Code further states:
Art. 12
1 Unless the law expressly provides otherwise, a person is only liable to prosecution for a felony or misdemeanour if he commits it wilfully.
2 A person commits a felony or misdemeanour wilfully if he carries out the act in the knowledge of what he is doing and in accordance with his will. A person acts wilfully as soon as he regards the realization of the act as being possible and accepts this.
3 A person commits a felony or misdemeanour through negligence if he fails to consider or disregards the consequences of his conduct due to a culpable lack of care. A lack of care is culpable if the person fails to exercise the care that is incumbent on him in the circumstances and commensurate with his personal capabilities. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 12.
The Code also states:
Art. 22
1 The judge can reduce the penalty if the execution of a crime of a felony or misdemeanour is not pursued to its completion or if the result necessary for the completion of the offence does not occur or could not occur. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 22(1).
The Code further states:
Art. 24
1 Any person who has intentionally incited someone else to commit a felony or a misdemeanour incurs, if the offence has been committed, the penalty applicable to the person who has committed the offence.
2 Any person who has attempted to incite someone else to commit a felony incurs the penalty applicable to the attempt of that felony.
Art. 25
The penalty is reduced for any person who has intentionally assisted another to commit a felony or a misdemeanour. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 24 and 25.
Under the title “Felonies and misdemeanours against public peace”, the Code also states:
260bis
1 Any person who, in accordance with a plan, carries out specific technical or organizational measures, the nature and extent of which indicate that the offender intends to commit any of the offences listed below shall be liable to a custodial sentence not exceeding five years or to a monetary penalty:
j. War crimes (Art. 264c–264h).
2. If the offender, of his own volition, does not complete the preparatory act, he shall not be liable to any penalty.
3. It shall also be an offence for any person to carry out the preparatory acts abroad, provided it was intended to commit the offences in Switzerland. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 260bis(1)–(3).
[footnotes in original omitted]
Tajikistan
Tajikistan’s Criminal Code (1998) provides for the punishment of: “illegal use of emblems and signs of the Red Cross and Red Crescent” (Article 333); “genocide” (Article 398); “biocide” (Article 399); “ecocide” (Article 400); “mercenarism” (Article 401); “attacks against persons and establishments under international protection” (Article 402); “wilful breaches of norms of international humanitarian law committed in [an international or internal] armed conflict” (Article 403); “wilful breaches of norms of international humanitarian law committed in international or internal armed conflict with the threat to health or causing bodily injury” (Article 404); and “other breaches of the norms of international humanitarian law” (Article 405). 
Tajikistan, Criminal Code, 1998, Articles 333 and 398–405.
Thailand
Thailand’s Prisoners of War Act (1955) provides for the punishment of persons committing offences listed under the heading “Offences with respect to prisoners of war” and offences listed under the heading “Offences in the case of armed conflict not of an international character”. 
Thailand, Prisoners of War Act, 1955, Sections 12–19.
Uganda
Uganda’s Geneva Conventions Act (1964) provides:
Any person, whatever his nationality, who, whether within or without Uganda commits or aids, abets or procures the commission by any other person of any grave breach of any of the [1949 Geneva] Conventions … commits an offence and on conviction thereof [shall be punished]. 
Uganda, Geneva Conventions Act, 1964, Section 1(1).
Ukraine
Ukraine’s Criminal Code (2001) provides for the punishment of offenders having committed an act described in a list of punishable offences such as, inter alia: “looting” (Article 432); “violence against the civilian population in areas of war operations” (Article 433); “bad treatment of prisoners of war” (Article 434); “unlawful use or misuse of the Red Cross and Red Crescent symbols” (Article 435); “violations of the laws and customs of war”, notably those provided for in international instruments to which Ukraine is a party (Article 438); “use of weapons of mass destruction” (Article 439); “ecocide” (Article 441); “genocide” (Article 442); “illegal use of the symbols of the red cross and red crescent” (Article 445); and “mercenarism” (Article 447). 
Ukraine, Criminal Code, 2001, Articles 432–447.
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, provides:
Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the [1949 Geneva] conventions or [the 1977 Additional Protocol I] shall be guilty of an offence and on conviction on indictment [shall be punished]. 
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
United Kingdom of Great Britain and Northern Ireland
The UK UN Personnel Act (1997) provides:
If a person commits, outside the United Kingdom, any act to or in relation to a UN worker which, if he had done it in any part of the United Kingdom, would have made him guilty of [murder, manslaughter, culpable homicide, rape, assault causing injury, kidnapping, abduction or false imprisonment], he shall in that part of the United Kingdom be guilty of that offence. 
United Kingdom, UN Personnel Act, 1997, Section 1.
This Act does not apply to any UN operation “which is authorised by the Security Council of the United Nations as an enforcement action under Chapter VII of the Charter of the United Nations, … in which UN workers are engaged as combatants against organised armed forces, and … to which the law of international armed conflict applies”. 
United Kingdom, UN Personnel Act, 1997, Section 4(3).
United Kingdom of Great Britain and Northern Ireland
The UK War Crimes Act (1991) grants the UK courts jurisdiction over murder, manslaughter or culpable homicide committed in Germany or German-occupied territory during the Second World War, provided that the offence “constituted a violation of the laws and customs of war”. The Act applies to a person who was, in 1990, a British citizen or resident in the United Kingdom, the Isle of Man or any of the Channel Islands, “irrespective of his nationality at the time of the alleged offence”. 
United Kingdom, War Crimes Act, 1991, Section 1.
United Kingdom of Great Britain and Northern Ireland
The UK ICC Act (2001) includes as offences under domestic law the acts of genocide, crimes against humanity and war crimes as defined in the 1998 ICC Statute. Thus, it provides: “It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.” There is a similar provision for Northern Ireland. 
United Kingdom, ICC Act, 2001, Part 5, Sections 50, 51 and 58.
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established provisions for the punishment of the perpetrators of a list of specified offences and also of “all other offences against the laws or customs of war”, to be pronounced by the military commissions. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established provisions for the punishment of the perpetrators of a list of “violations of the laws and customs of war” and other specified acts committed “against any civilian population before or during the war”, to be pronounced by the military commissions. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region II, 1945, Regulation 2(b) and (c).
United States of America
The US War Crimes Act (1996) provides:
(a) Offense. – Whoever, whether inside or outside the United States, commits a war crime … shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(c) Definition. – As used in this section the term “war crime” means any conduct –
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians. 
United States, War Crimes Act, 1996, Section 2441.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
(28) CONSPIRACY.—Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2630, § 950v(b)(28).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“(29) CONSPIRACY.—Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(29).
Uruguay
Uruguay’s Military Penal Code (1943), as amended, under the heading “Crimes which affect the moral strength of the army and of the naval forces”, lists a number of acts, such as the violation of the rule of humane treatment of POWs, looting and attacks against certain specified objects, for which it provides punishment. 
Uruguay, Military Penal Code, 1943, as amended, Article 58.
Uzbekistan
Uzbekistan’s Criminal Code (1994), in a chapter entitled “Crimes against the peace and security of mankind”, provides for the punishment of, inter alia, “violations of laws and customs of war” (Article 152), “genocide” (Article 153) and the participation of “mercenaries” in “armed conflict or military actions” (Article 154). 
Uzbekistan, Criminal Code, 1994, Articles 152–154.
Vanuatu
Vanuatu’s Geneva Conventions Act (1982) provides:
Any grave breach of any of the Geneva Conventions that would, if committed in Vanuatu, be an offence under any provision of the Penal Code Act Cap. 135 or any other law shall be an offence under such provision of the Penal Code or any other law if committed outside Vanuatu. 
Vanuatu, Geneva Conventions Act, 1982, Section 4.
Venezuela
Venezuela’s Code of Military Justice (1998), as amended, under a chapter dealing with “Crimes against international law”, provides for the punishment of the offenders of a list of certain war crimes. 
Venezuela, Code of Military Justice, 1998, as amended, Article 474.
Venezuela
Venezuela’s Revised Penal Code (2000) provides for the punishment of Venezuelan nationals and foreigners who have committed certain acts “during a war between Venezuela and another nation” or who “violate the conventions or treaties [to which Venezuela is a party] in a way which entails the responsibility of the latter”. 
Venezuela, Revised Penal Code, 2000, Article 156.
Venezuela
Venezuela’s Penal Code (2005) states:
The following shall be punished with military arrest or political prison for one to four years:
3. Venezuelan or foreign nationals who violate conventions or treaties to which the Republic [of Venezuela] is party in a way that entails State responsibility. 
Venezuela, Penal Code, 2005, Article 155(3).
Venezuela
Venezuela’s Constitution (2009) states:
The public authorities, whether military, civilian or of any other kind, even during a state of emergency, exception or restriction … are prohibited from committing, permitting or tolerating the forced disappearance of persons. … The … perpetrators, accomplices and concealers of the crime of forced disappearance of a person, as well as of any attempt to commit such offences, shall be punished in accordance with law. 
Venezuela, Constitution, 2009, Article 45.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.” 
Venezuela, Constitution, 2009, Article 338.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
An indicted [person] is any person that is identified as the author of, or as having participated in, a punishable act through a procedural act of the authorities responsible for prosecution, as established by this Code.
When the accusation is admitted [by the Court], the indicted [person] acquires the status of accused [person]. 
Venezuela, Penal Procedure Code, 2009, Article 124.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
An indicted [person] is any person that is identified as the author of, or as having participated in, a punishable act through a procedural act of the authorities responsible for prosecution, as established by this Code.
When the accusation is admitted [by the Court], the indicted [person] acquires the status of accused [person]. 
Venezuela, Penal Procedure Code, 2012, Article 126.
Viet Nam
Viet Nam’s Penal Code (1990) provides for the punishment of anyone who commits, inter alia, one of the offences listed under the following headings: “Violation of policy concerning soldiers killed or wounded in combat” (Article 271); “Theft or destruction of war booty” (Article 272); “Harassment of civilians” (Article 273); “Exceeding military need in performance of a mission” (Article 274); “Mistreatment of a prisoner of war or of a soldier who has surrendered” (Article 275); “Crimes against humanity” committed in time of peace or in time of war (Article 278); “War crimes”, such as “acts seriously breaching international norms contained in the treaties to which Viet Nam is a party” (Article 279); and “Recruitment of mercenaries and service as a mercenary” (Article 280). 
Viet Nam, Penal Code, 1990, Articles 271–280.
Viet Nam
Viet Nam’s Penal Code (1999), in its chapter on “Crimes infringing upon the duties and responsibilities of army personnel”, states:
Army personnel on active service, reserve army personnel in the period of concentrated training, citizens requisitioned for service in the army, militiamen, self-defence personnel detached to army units in combat, combat service, shall bear penal liability for the offences they commit as provided for in this Chapter. 
Viet Nam, Penal Code, 1999, § 315.
The offences listed in that chapter include those listed under the following headings: “Concealing offences [including war crimes]” (Article 313); “Failing to denounce crimes [including war crimes]” (Article 314); “Violating policies towards war-wounded and/or war-dead during combat” (Article 336); “Appropriating or destroying war trophies” (Article 337); “Harassing civilians” (Article 338); “Abusing military demands while performing duties” (Article 339); “Ill-treating prisoners of war and/or enemy deserters” (Article 340); “Crimes against humanity” committed in time of peace or in time of war (Article 342); “War crimes”, such as “acts in serious violation of international laws or international treaties which Viet Nam has signed or acceded to” (Article 343); and “Recruiting mercenaries or working as mercenaries” (Article 344). 
Viet Nam, Penal Code, 1999, §§ 313–314, 336–340 and 342–344.
Yemen
Yemen’s Military Criminal Code (1998) provides for the punishment of a list of offences such as war crimes committed in a “zone of military operations” (Article 20) or “during a war [and] against persons and objects protected under the international conventions to which the Republic of Yemen is a party” (Article 21). 
Yemen, Military Criminal Code, 1998, Articles 5 and 20–23.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Criminal Offences against the Nation and State Act (1945) provides for the punishment of “any person who commits a war crime, i.e., who during the war or the enemy occupation acted as an instigator or organizer, or who … assisted or otherwise was the direct executor of [one of the acts listed thereunder]”. 
Yugoslavia, Socialist Federal Republic of, Criminal Offences against the Nation and State Act, 1945, Article 3(3).
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, in a chapter entitled “Criminal acts against humanity and international law”, provides for a list of punishable acts committed by “any person” and some of them “during war, armed conflict (or occupation)”, such as: “war crimes against civilians” (Article 142); “war crimes against the wounded and the ill” (Article 143); “war crimes against prisoners of war” (Article 144); “unlawful killing and wounding of the enemy” (Article 146); “unlawful seizure of belongings from the killed and wounded in a theatre of war” (Article 147); “use of prohibited means of combat” (Article 148); “harming a parlementaire” (Article 149); “cruel treatment of the wounded, the ill and prisoners of war” (Article 150); “unjustified delay in the repatriation of prisoners of war” (Article 150-a); “destruction of cultural and historic monuments” (Article 151); and “misuse of international emblems” (Article 153). 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Articles 142–153.
A commentary on the Code’s provisions emphasizes that these crimes can be committed in time of war, armed conflict (or occupation). 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Commentary to Articles 142–144, 146, 148–151 and 153.
The Report on the Practice of the Federal Republic of Yugoslavia notes that the term “armed conflict” in this context should be interpreted as including internal conflicts. 
Report on the Practice of the Federal Republic of Yugoslavia, 1997, Chapter 6.4.
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, provides:
Any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of [the 1949 Geneva Conventions or the 1977 Additional Protocol I] shall be guilty of an offence.
A person guilty of an offence in terms of [the above] shall be liable [to punishment]. 
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 3(1) and (2).
Australia
In 2000, in the SRNN case, Australia’s Administrative Appeals Tribunal stated:
The actions committed by Mr SRNN amount, in the Tribunal’s view, to war crimes within the terms of Article 3 of the Geneva Conventions of 1949 as contended by the respondent. Mr SRNN was well aware of the purpose of the torture that he inflicted during his various interrogations, and he shared that purpose and was prepared to refer persons for more severe torture if they failed to provide satisfactory responses to his own form of questioning. Mr SRNN was also well aware of the nature of the Sri Lankan Army’s methods of handling LTTE [Liberation Tigers of Tamil Eelam] and other suspects including, during his second tour of duty, knowledge of the existence of special torture chambers in Colombo where persons were routinely killed. In the circumstances there are no reasons why he should not be found to be fully responsible for his actions, even though he was part of a military and political regime that encouraged and supported the war crimes that he committed. 
Australia, Administrative Appeals Tribunal, SRNN case, Decision, 10 November 2000, § 71.
Australia
In 2002, in the SAH case, Australia’s Administrative Appeals Tribunal stated:
58. There is no question that the applicant was a member of the Iraqi Army at the time such war crimes and crimes against humanity were committed. He admits that he knew about atrocities and events such as those to which I have referred in the course of these reasons. He denies, however, that he played any part in them and that, at all times, he was an administrative officer engaged solely in the distribution of supplies such as food, clothing and shoes and in the payment of salaries …
59. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. Apart from being a member of, and indeed an officer of, the Iraqi Army at all relevant times, there is no evidence pointing to the applicant’s having played such a role … The applicant has admitted knowledge of the activities of the Iraqi Army but knowledge of itself does not mean that he was a part of the common purpose or aided or abetted those activities. There is no evidence that he acquired knowledge of the activities before they were carried out and so became part of their planning or a key element in their being carried out or whether he acquired knowledge at some later stage. There is no evidence that he acquired his knowledge while he played some role in carrying them out. Indeed, there is no evidence that he played any role at all. 
Australia, Administrative Appeals Tribunal, SAH case, Decision, 18 April 2002, §§ 58–59.
Australia
In 2002, in the AXOIB case, Australia’s Administrative Appeals Tribunal stated:
Article 6 of the … [Nuremberg Charter] provides that “leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”. Article 25 of the Rome Statute provides an even broader definition of criminal complicity. By any standard of criminal complicity or accessorial liability applicable in this country, the applicant would be beyond the protection of the Convention if there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. In the circumstances his intent to achieve such outcome could and should be inferred in my opinion. 
Australia, Administrative Appeals Tribunal, AXOIB case, Decision, 17 May 2002, § 33.
Australia
In 2002, in the SAL case, Australia’s Administrative Appeals Tribunal stated:
In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. 
Australia, Administrative Appeals Tribunal, SAL case, Decision, 12 November 2002, § 85.
Australia
In 2002, in the VAG case, the Administrative Appeals Tribunal stated:
66. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.
75. In the absence of any evidence that the killing of the two prisoners was carried out according to a judicial order properly obtained, it does amount to a war crime or a crime against humanity. Do VAG’s actions in sending them on mean that was part of the common purpose in carrying out those activities. He participated in the ultimate result by sending the prisoners on to the headquarters. He was part of the PUK [Patriotic Union of Kurdistan], some of whose members killed two of those prisoners, but he was not present at the time and disclaimed knowledge of what would happen. In that sense, VAG was at arm’s length from the killings that ultimately occurred and there is no evidence to suggest that he was able to prevent their occurring. Unlike an informer who may be able to choose whether or not he passes on information, this was not a case in which VAG could choose not to send the prisoners as he had been directed to do without consequence to himself. In that case and given his distance from the killings themselves, I do not consider that he can be said to have been part of any common purpose in carrying out the killings. As they are the only specific crimes that are crimes against humanity or war crimes, I do not consider that VAG was part of a common purpose and so was not an accessory to them.
76. With regard to the wider war crimes and crimes against humanity committed by the PUK, I do not consider that the evidence supports a finding that there are serious reasons for considering that VAG was in a position where he could influence the course of events. Certainly, he was a long standing member of the PUK and a member who drew a number of people into the PUK but there is no evidence that he participated in acts of atrocity, was present at any as a bystander or instigated or directed any. There is no evidence that he initiated events that led to any such acts. 
Australia, Administrative Appeals Tribunal, VAG case, Decision, 23 December 2002, §§ 66 and 75–76.
Australia
In 2003, in the SHCB case, the Federal Court of Australia, in hearing an appeal of an Australian Administrative Appeals Tribunal (AAT) decision regarding an application refused on the grounds that the 1951 Refugee Convention did not apply to the appellant by reasons of the operation of Article 1F of the Convention, noted:
13. The AAT characterised the focus of the case before it as being whether the appellant had any part to play, whether directly or indirectly, in acts of atrocity committed by KHAD [an Afghani state information agency] and, if so, whether his part leads to the conclusion that he had committed a war crime or a crime against humanity. The AAT stated the relevant legal principle as follows:
“In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.”
There has been no suggestion that that statement of principle is wrong.
23. It is not necessary, for a finding that the appellant committed a war crime or a crime against humanity, that there be a finding with respect to a specific incident, if there are findings of many such incidents and a finding that the appellant took steps as an officer of KHAD knowing that such acts would be the consequence of his steps. It was open to the AAT, on the material before it, to conclude that the appellant aided, abetted or otherwise assisted the commission or attempted commission of such acts. The AAT made findings that KHAD was involved in crimes against humanity and war crimes at a time when the appellant, in the course of his duties as a reasonably high ranking officer, passed on information that was likely to lead to the commission of such acts. 
Australia, Federal Court, SHCB case, Judgment, 22 December 2003, §§ 13 and 23.
Australia
In 2004, in the SRDDDD case, Australia’s Administrative Appeals Tribunal stated:
58. The Tribunal is satisfied that there are serious reasons for considering that the Applicant did commit, and was within the meaning of the Rome Statute, criminally responsible for, committing crimes against humanity and war crimes. The evidence against the Applicant in this regard is strong. However, the Tribunal is also satisfied that there are serious reasons for considering that the Applicant committed the relevant crimes as a consequence of his political motivation. That is, the Applicant’s motives for committing the crimes were significantly political in nature. It is not a minority motivation that was political. The conduct engaged in by the Applicant would not have been committed in the absence of political motivation.
59. However, as earlier indicated in these reasons, Article 1F [of the 1951 Refugee Convention] requires only one of the enumerated subparagraphs to be considered. The paragraphs are to be taken as independent the one from the other, the political flavour of Article 1F(b) not being relevant to a construction of Article 1F (a) or 1F (c). As earlier found in these reasons, each sub-article is intended to embrace a distinct factual situation; the “serious non-political crime” in (b) being a different offence comprised of a different factual situation to the crime against peace, “the war crime” or “crime against humanity” in (a). Thus consistent with this construction of the Article, if the factual situation leads a decision-maker to the opinion that there exists serious reasons for considering that a war crime or a crime against humanity has been committed by an Applicant, it is of no defence to that Applicant for the Tribunal of fact to also be satisfied that there are serious reasons for considering that he has committed a serious non-political crime, and thereby that the crimes committed by him were politically motivated.
60. The Tribunal being satisfied that there are serious reasons for considering that the Applicant has committed war crimes and crimes against humanity Article 1F applies so as to preclude the Applicant from protection under the Refugees Convention. 
Australia, Administrative Appeals Tribunal, SRDDDD case, Decision, 13 February 2004, §§ 58–60.
Australia
In 2005, in the SRYYY case, the Federal Court of Australia noted:
36 The extension of individual criminal responsibility for war crimes to internal armed conflicts under international customary law, as well as under international conventional law, was recognised in 1995 by the decision of the ICTY Appeals Chamber in Tadic. The Chamber held (at [71]–[95]) that although grave breaches of the 1949 Geneva Conventions could occur only in the context of an international armed conflict, Art 3 of the ICTY Statute (violations of the laws and customs of war) incorporates customary international law, which includes a concept of individual criminal responsibility for war crimes even when committed in the context of an internal armed conflict (see [94]).
49 Perhaps the most significant change in terms of scope and content of individual criminal responsibility since the Second World War has been the recent acceptance that war crimes for which an individual may be criminally responsible may be committed in situations of internal armed conflict. As recently as 1994, the Commission of Experts established pursuant to Security Council Resolution 780 to report on questions relating to breaches of humanitarian law in the former Yugoslavia concluded that “there does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes” and, consequently, “the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal are offences when committed in international, but not in internal armed conflicts” (Annexure to the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 at [52] and [54]). The situation under customary law was also reflected in the international instruments which dealt with war crimes up to and including the Statute of the ICTY. That changed in 1994 with the Statute of the ICTR and in 1995 with the ICTY’s decision in Tadic. In Tadic the ICTY held at [94] that customary international law did contain an offence of war crimes committed during internal armed conflict, and imported such an offence into Art 3 of the ICTY Statute. However, war crimes are defined so as to include conduct occurring in an internal armed conflict under the Statutes of the ICTY and the ICTR, the Draft Code of Crimes and the Rome Statute, but were not so defined in the earlier instruments.  
Australia, Federal Court, SRYYYY case, Judgment, 17 March 2005, §§ 36 and 49.
Australia
In 2006, in the SZCWP case, J. Downes, in a majority decision of the full bench of the Federal Court of Australia, stated that, with respect to war crimes:
Internal disturbances and tensions are excluded. There must be an armed conflict although it need not be of an international character. Criminal responsibility attaches to aiding, abetting and assisting or in any other way contributing to the commission or attempted commission of such a crime where there is a group acting with a common purpose and the contribution is intentional and with at least knowledge of the intention to commit the crime. (See paragraph 2(f) of Article 8 and Article 25 of the Rome Statute). 
Australia, Federal Court, SZCWP case, Judgment, 20 February 2006, § 114.
Australia
In 2006, in the WBR case, Australia’s Administrative Appeals Tribunal stated:
29. The Tribunal also notes the following statement of principle which was implicitly accepted by the Federal Court of Australia (Full Court) in SHCB v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 561 at 564 [since re-designated as FCAFC 308, at § 13]:
“In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.”
31. The Tribunal accepts that the applicant, as a member of the Wahdat party, shared the broad common purpose of members of that party to promote the civil, religious and political rights of the Shias in general and the Hazaras in particular. The Tribunal, however, is not satisfied that the applicant shared a common purpose with other members of the Wahdat party that torture or any other form of inhumane treatment or abuse be inflicted on prisoners in Katei Ganai prison or on any other persons. More specifically, although the Tribunal is satisfied that the applicant on 2 occasions intentionally escorted a prisoner to an interrogation room at Katei Ganai prison for the purpose of interrogation, the Tribunal is not satisfied that on either occasion he did so with a shared common purpose with the interrogators that torture or any other physical or mental abuse be inflicted on the prisoner in order to extract information from him. The Tribunal, furthermore, accepts the applicant’s evidence that the reason he commenced working at the prison, and continued to work there for almost 3 years even though he was aware that prisoners were being tortured, was in order to avoid combat fighting in the civil war, and, in the Tribunal’s opinion, it cannot reasonably be inferred from his continuing to work at the prison in those circumstances that he thereby necessarily shared a common purpose with persons in authority at the prison that prisoners be tortured.
32. Accordingly, the tribunal finds that the applicant lacked the requisite mental element for accessorial liability for war crimes and the crimes against humanity constituted by the acts of torture and other abuse inflicted on prisoners by certain members of the Wahdat party in the course of interrogation sessions at Katei Ganai prison in the period 1992–1994: Re W97/164 and Minister for Immigration and Multicultural Affairs (above) at 449, 450. 
Australia, Administrative Appeals Tribunal, WBR case, Decision of 5 September 2006, §§ 29, 31–32.
216. … The act of confinement and torture indisputably is the outcome of act of abduction. Confinement and torture would not have taken place if there was no act of abduction. Since accused Mir Quasem Ali is found to have had ‘concern’ with the commission of confinement and torture of the detainees at the camp, it is lawfully presumed that the act of abduction too occurred on his approval and endorsement and within his knowledge.
217. On rational and integrated evaluation of evidence and relevant facts and context it stands proved beyond reasonable doubt that the criminal activities were carried out on substantial inducement and assistance of the accused Mir Quasem Ali , that the accused and the AB men at the torture camp worked together in furtherance of common purpose of causing deprivation of civilians’ physical liberty by keeping them under stretched and illegal captivity at the AB camp aiming to obtain information about the freedom fighters and as such the act and conduct of the accused forming part of attack directing civilian population coupled with his significant influence and domination over the AB torture camp as depicted provided substantial abetment and assistance to the accomplishment of offence of ‘confinement’ and degrading ‘torture’. Accused Mir Quasem Ali is thus found guilty of offence of ‘abduction’, ‘confinement’ and ‘torture’ as crimes against humanity as enumerated in section 3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973 for which he is held liable under section 4(1) and 4(2) of the Act of 1973. 
Bangladesh, International Crimes Tribunal-2, Mir Quasem Ali case, Judgment, 2 November 2014, §§ 205, 209–212 and 216–217.
230. [The victim] was… abducted by a group of AB members and the criminal activities constituting the offences alleged were carried out at the ‘instance’ of the accused—the charge framed alleges. The act of ‘instance’ encompasses ‘signal’, providing ‘moral support’, ‘encouragement’, approval to the accomplishment of the actual crime. Thus, the act of ‘instance’ being an intangible act is not required to be proved by direct evidence. It is to be inferred from circumstances and relevant facts divulged.
231. We have already found that there had been culpable alliance of ICS leaders with the camp and activities carried out there. Be that as it may, the accused who was a significantly potential leader of ICS of course was concerned with the common plan and design. Context, purpose of bringing non[-]combatant freedom fighters and pro-liberation civilians to the AB camp on capture and inevitable culpable association of accused Mir Quasem Ali with the camp allow even a man of reasonable prudence that he was deliberately concerned with the entire course of criminal conduct.
238. [The a]ccused’s potential and leading position in the ICS fanned the flames of his domination and inducement even over the AB force at the camp at Dalim Hotel in Chittagong. By choosing to be present at the AB camp where the civilian detainees were subjected to torture and tortured to death the accused Mir Quasem Ali took a[n] encouraging step which substantially facilitated and contributed to the commission of crimes.
239. The above crucial facts all together offer an unambiguous conclusion that accused Mir Quasem Ali had culpable and effective association with the camp and had a significant position of authority on it and activities carried out there and that he was quite ‘aware’ of criminal acts perpetrated by AB men at the torture camp by bringing and keeping the pro-liberation civilians captive there on forcible capture. The Tribunal notes that ‘abetting’ encompasses the act of facilitation, encouragement or instigation to the commission of the principal crime.
The criminal activities constituting the offences alleged were carried out at the ‘instance’ of the accused – the charge framed alleges. The act of ‘instance’ encompasses ‘signal’, providing ‘moral support’, ‘encouragement’, ‘approval’, ‘guidance’ to the accomplishment of the actual crime. Thus, the act of ‘instance’ being an intangible act is not required to be proved by direct evidence. It is to be inferred from circumstances and relevant facts divulged. 
Bangladesh, International Crimes Tribunal-2, Mir Quasem Ali case, Judgment, 2 November 2014, § 256.
359. On totality of evidence and circumstances disabused above, it has been proved that accused Mir Quasem Ali accompanied the gang of armed of AB men in accomplishing the act of violent capture of non[-]combatant civilians by launching attack. The series of criminal activities including the act of forcible capture carried out was of course in furtherance of common plan and purpose. Accused’s act of ‘accompanying’ by itself denotes that he was a part of common plan and design and had ‘participation’ to the act of confinement and torture too as the integrated chain of his acts and conduct, amid and subsequent to act of abduction, formed part of attack that in fact substantially contributed and facilitated the whole system transaction of the criminal acts constituting the offences of abduction, confinement and torture perpetrated by the AB members of the camp.
360. At the same time, accused’s control and substantial influence on the AB camp and its members that has already been revealed in the preceding deliberation on other charges coupled with his admitted potential status in the Chittagong ICS directs to the conclusion that not only he accompanied the perpetrators but also ‘guided’, ‘influenced’ and ‘induced’ them to accomplish the actual commission of the act of capture of selected civilians that eventually resulted in their confinement and torture at the AB camp at Dalim Hotel. Considering the context and relationship of accused with the AB men and the AB camp, as found from evidence of P.W.18 and P.W.19 it would be quite logical to be with the inference that such ‘influence’, ‘guidance’ and ‘inducement’ rather directed the perpetrators in committing the series of criminal acts including the act of ‘abduction’. 
Bangladesh, International Crimes Tribunal-2, Mir Quasem Ali case, Judgment, 2 November 2014, §§ 351, 358–360.
Belgium
In the Violations of IHL in Somalia and Rwanda case in 1997, a Belgian Military Court acquitted two Belgian soldiers accused of having injured and threatened, in 1993, the civilian population whilst performing duties as part of the UNOSOM II peacekeeping operation in Somalia. The Court came to the conclusion that the 1949 Geneva Conventions and their 1977 Additional Protocols were not applicable to the armed conflict in Somalia and that, therefore, the civilian population could not be granted protection on this basis. The Court held that even common Article 3 of the 1949 Geneva Conventions did not apply to the situation, as the Somali militia did not have an organized military structure, a responsible leadership or exercise authority over a specific part of the territory. Consequently, Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (as amended) was also inapplicable. The Court further stated that the members of the UNOSOM II mission could not be considered as “combatants” since their primary task was not to fight against any of the factions, nor could they fall into the category of an “occupying force”. 
Belgium, Military Court, Violations of IHL in Somalia and Rwanda case, Judgment, 17 December 1997.
Belgium
In The Four from Butare case in 2001, a Belgian court found the accused individually responsible and guilty of war crimes during the 1994 genocide in Rwanda. The four Rwandans had been arrested under the Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (as amended). They had been charged with violations of grave breaches of provisions of the 1949 Geneva Conventions and the 1977 Additional Protocol I, as well as violations of common Article 3 of the 1949 Geneva Conventions and Articles 1, 2 and 4 of the 1977 Additional Protocol II. 
Belgium, Cour d’Assises de Bruxelles, The Four from Butare case, Judgment, 7–8 June 2001.
In 2002, the judgment was confirmed by the Belgian Court of Cassation. 
Belgium, Court of Cassation, The Four from Butare case, Judgment, 9 January 2002.
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
[C]ustomary status of criminal responsibility for war crimes (against civilians or against humanity), and individual criminal responsibility for these criminal offences … , was recognized by the UN Secretary General, the International Law Commission, as well as jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR). These institutions have established that criminal responsibility for war crimes constitutes a peremptory norm of international law or jus cogens. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, p. 60.
[footnotes in original omitted]
Canada
In the Brocklebank case before the Canadian Court Martial Appeal Court in 1996 involving the question of criminal responsibility of a Canadian soldier serving on a peacekeeping mission in Somalia for having negligently performed a military duty, the Court of Appeal (majority) stated:
I see no basis in law for the inference that the [1949] Geneva Conventions or the relevant provisions of the Unit Guide (1990)] impose on service members the obligation, not otherwise found in Canadian law, to take positive steps to prevent or arrest the mistreatment or abuse of prisoners in Canadian Forces custody by other members of the forces, particularly other members of superior rank. I do not wish to comment on the duty that a superior officer might have in similar circumstances, but assert that a military duty in the sense of [Section 124 of the National Defence Act (1985)], to protect civilian prisoners not under one’s custody cannot be inferred from the broad wording of the relevant sections of the [Unit Guide (1990)] or of [the 1949 Geneva Convention IV]. I agree with the prosecution … that Canadian soldiers should conduct themselves when engaged in operations abroad in an accountable manner consistent with Canada’s international obligations, the rule of law and simply humanity. There was evidence in this case to suggest that the respondent could readily have reported the misdeeds of his comrades. However, absent specific wording in the relevant international conventions and more specifically, the [Unit Guide (1990)], I simply cannot conclude that a member of the Canadian Forces has a penally enforceable obligation to intervene whenever he witnesses mistreatment of a prisoner who is not in his custody.
In closing, I would remark that … it remains open to the chief of defence staff to define in more explicit terms the standards of conduct expected of soldiers in respect of prisoners who are in Canadian Forces custody. It is open to the chief of defence staff to … impose a military duty on Canadian Forces members either to report or take reasonable steps to prevent or arrest the abuse of prisoners not in their charge … This might prove a useful undertaking. 
Canada, Court Martial Appeal Court, Brocklebank case, Judgment, 2 April 1996; see also Court Martial Appeal Court, Brown case, Judgment, 6 January 1995 and Boland case, Judgment, 16 May 1995; Seward case, Judgment, 16 May 1995.
Canada
In 2005, in the Mugesera case, Canada’s Supreme Court confirmed a deportation order on grounds of incitement to murder, hatred and genocide, and the crime against humanity of persecution, in Rwanda in 1992. Regarding the counselling of a murder that is not committed as the initial criminal act requirement of the crime against humanity of murder, the Court stated:
132. The first question raised on the facts of this appeal is whether the fact that Mr. Mugesera counselled the commission of murders that were not committed meets the initial criminal act requirement for a crime against humanity. Section 7(3.77) of the Criminal Code provides that “counselling” an act listed in s. 7(3.76) will be sufficient to meet the requirement. Murder is one of the acts listed in s. 7(3.76). Mr. Duquette found, as a matter of fact, that Mr. Mugesera’s speech counselled the commission of murders. His findings of fact are sufficient to conclude, as discussed above, that Mr. Mugesera satisfied both the physical and mental elements of the “underlying offence” of counselling a murder that is not committed.
133. This does not end our analysis, however. As we noted above, s. 7(3.76) expressly incorporates principles of customary international law into the domestic formulation of crimes against humanity. We must therefore go further and consider whether the prevailing principles of international law accord with our initial analysis. A review of the jurisprudence of the ICTY and the ICTR suggests that it does not.
134. The statutes of the ICTY and the ICTR (U.N. Doc. S/RES/827 (1993) and U.N. Doc. S/RES/955 (1994), respectively) do not use the word “counselling”. This does not mean, however, that the decisions of these courts cannot be informative as to the requirements for counselling as a crime against humanity. Both statutes provide that persons who “instigate” the commission of a proscribed act may be liable under international law. This Court found in Sharpe, at para. 56, that counselling refers to active inducement or encouragement from an objective point of view. The ICTR has found that instigation “involves prompting another to commit an offence”: Akayesu, Trial Chamber, at para. 482. The two terms are clearly related. As a result, we may look to the jurisprudence of the ICTY and the ICTR on instigation in determining whether counselling an offence that is not committed will be sufficient to satisfy the initial criminal act requirement for a crime against humanity under s. 7(3.76) of the Criminal Code.
135. In Prosecutor v. Rutaganda, Case No. ICTR-96-3-T (Trial Chamber I), 6 December 1999, the ICTR conducted a review of the jurisprudence of the ICTY and the ICTR on individual criminal responsibility. The ICTR found that instigation (other than of genocide) involves (1) direct and public incitement to commit a proscribed act; but (2) only where it has led to the actual commission of the instigated offence: para. 38; see also Akayesu, Trial Chamber, at para. 482. It should be noted that the second requirement does not mean that the offence would not have been committed “but for” the instigation. However, a sufficient causal link must be made out: Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T (ICTY, Trial Chamber III), 26 February 2001, at para. 387.
136. Mr. Duquette of the IAD [Immigration and Refugee Board Appeal Division] was unable to find that the commission of murders had actually occurred as a result of Mr. Mugesera’s counselling. An interpretation of ss. 7(3.76) and 7(3.77) of the Criminal Code in light of customary international law shows that Mr. Mugesera’s counselling of murder was not sufficient to satisfy the initial criminal act requirement for a crime against humanity. 
Canada, Supreme Court, Mugesera case, Judgment and Reasons for Judgment, 28 June 2005, §§ 132–136.
Regarding the difference between complicity and incitement to genocide, the Court stated:
In Prosecutor v. Akayesu … the Trial Chamber of the International Tribunal for Rwanda (“ICTR”) drew a distinction between the constituent elements of … complicity in genocide and incitement to genocide. In the case of a charge of complicity, the prosecution must prove that genocide has actually occurred. 
Canada, Supreme Court, Mugesera case, Judgment and Reasons for Judgment, 28 June 2005, § 84.
Canada
In 2011, in the Ishaku case, Canada’s Federal Court dismissed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo. The Court stated:
Accomplices as well as principal actors may be found to have committed crimes within the meaning of international criminal law: international crimes. The concept of complicity is recognized in the case law, defined as personal and knowing participation, and complicity by association, whereby individuals may be rendered responsible for the acts of others because of their close and voluntary association with the principal actors in an organization that commits international crimes. Complicity rests on the existence of a shared common purpose and the knowledge that the individual in question has of the commission of the crimes. 
Canada, Federal Court, Ishaku case, Reasons for Judgment and Judgment, 14 January 2011, § 57.
[emphasis in original]
Canada
In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of complicity in crimes against humanity in Libya. The Board stated:
Subsection 6(1) [of the Crimes Against Humanity and War Crimes Act] indicates that every person who either before or after coming into force of this section commits outside of Canada, a) genocide, b) a crime against humanity, or c) [a] war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
Subsection 1.1 indicates that every person who conspires, or attempts to commit[,] is an accessory after the facts in relation to, or counsels, in relation to an offence referred to in subsection 1 is guilty of an indictable offence.
Now, I would also note that the Criminal Code of Canada has incorporated this definition into the legislation and it is an established principle in international domestic law that people who have personally [committed] war crimes, crimes against humanity, crimes against peace, and other international crimes, would generally be held accountable for those crimes.
As well, people who have been involved in the commission of such acts in a peripheral way and who are not directly involved may also be held responsible for the commission of those crimes.
In complicity resulting from membership in an organization, it is important to know … the nature and type of the organization to which the person belongs, [as] there are three types of organizations, brutal, non-brutal, and/or hybrid.
Briefly, a brutal organization is one whose main purpose, or activity, is to be involved in human rights abuses. Non-brutal organizations are those originally established for legitimate purposes and functions, but which would quite frequently get involved in human rights abuses, such as regular armed forces, militias, political parties.
Hybrid organizations are those organizations which have [different] units some of which are involved in crimes against humanity, others [are] not.
To attach responsibility through peripheral participation in the crimes of non-brutal organizations, that is complicity arising from the actions of a participant, a person could either aid … , or [abet] the perpetration of those crimes or may be complicit in the perpetration of those crimes through a shared common purpose.
Aiding and [abett]ing arises when a person substantially facilitates the mission of the organization by assisting in, or engaging in, activity that contributes directly or indirectly, to the purposes of the organization in question. A person’s complicity may also arise from the existence of a shared common purpose and knowledge that all parties in question may have of the purpose of the organization.
The commonly considered factors for shared common purpose as established by the Federal Court are nature of the organization, the method of recruitment, position or rank in the organization, length of time in the organization, opportunity to leave and knowledge of the organization's atrocities. It is also possible to commit crimes against humanity as an accomplice without personally committing the acts that are designated international crimes. 
Canada, Immigration and Refugee Board, Peters case, Record of an Admissibility Hearing under the Immigration and Refugee Protection Act, 29 January 2013, pp. 7–8.
Canada
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
46. … [I]t looks like the defence does not contest anymore that the modes of participation [in a crime] provided in paragraphs 21(1)(a) and (b) [of the Canadian Criminal Code] are applicable to the present case. Her final claim is more that it is not sufficient for the prosecution to prove the mere presence of the accused at the attacks where one or more people have been killed[,] but the prosecution has to prove that the participation of the accused to such attacks was substantial or significant.
47. In the first instance, I conclude that the prosecution can establish that the accused committed the intentional murder of a person by demonstrating that he committed the crime in one of the two ways described in article 21 of the [C]riminal Code:
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
48. On one side the international case law[,] relying on the provisions of paragraph 25(3) of the [1998 ICC] Rome Statute, applies among others the same modes of participation recognized by article 21 of the Code:
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (my emphasis)
49. On the other side, it would be nonsense to assume that the Canadian legislator had wanted to exclude from the CAHWCA [Crimes Against Humanity and War Crimes Act] the applicability of the different modes of participation in the criminal acts of genocide and crimes against humanity when such modes are so well recognized in the Canadian criminal law. On this basis alone, unless the Parliament has expressly excluded them, it is right to conclude that the modes of participation provided in paragraph 21(1) are applicable to the charges under the Act.
50. The Parliament already indicated that the provisions of the [C]riminal Code are applicable to the criminal acts created by one of its acts by enacting paragraph 34(2) of the Interpretation Act. L.R.C. (1985), c. I-21. “All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment … ”.
51. There are no contrary provisions in the CAHWCA[,] and consequently the provisions of paragraph 21(1) are clearly applicable to the criminal acts created by this act, in the present case genocide and crimes against humanity.
52. We will later see that the Crown relies both on paragraph 21(1)(a) and on paragraph 21(1)(b). The first paragraph is applicable when the prosecution alleges that the accused himself committed the crime or otherwise that he is the main perpetrator. Case law however recognizes that [this paragraph] is applicable also when two or more people participated to the crime. In such circumstances, there is more than one main perpetrator, and each one is individually responsible. The Crown pleads that the accused could be found guilty by applying one of these aspect of paragraph 21(1)(a). In the judgment R. v. Pickton [2010] 2 R.C.S. 198 at para. 63, the Court stated as follows:
63 … Co-principal liability is codified in s. 21(1)(a) of the Criminal Code: “Every one is a party to an offence who actually commits it”. It therefore arises whenever two or more people “actually commit” an offence to make both people individually liable for that crime. It also arises where two or more persons together form an intention to commit an offence, are present at the commission of the crime, and contribute to it, although they do not personally commit all of the essential elements of that offence (R. v. Mena (1987), 1987 CanLII 2868 (ONCA), 34 C.C.C. (3d) 304 (Ont. C.A.), at p. 316). If the trier of fact is satisfied beyond a reasonable doubt that the accused committed all elements of the crime, it does not matter whether another person may also have committed it.
64. In relation to murder, which, as noted above, is premised on a causal requirement (the allegedly unlawful act must “cause” death), the classic scenario in which the potential for co-principal liability arises is when two or more persons assault the victim at the same time, by beating him or her to death: see, for example, R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 S.C.R. 740. In a joint beating case, since each accused commits each element of the offence of murder (the entire actus reus and mens rea of the offence), and only factual causation may be uncertain (which person delivered the “fatal” blow), legal causation will allow for uncertainty as to the actual act which caused the death. The only requirement for “causation of death” is that related to murder/manslaughter generally. It must be established that each accused’s assault of the victim was a “significant contributing cause” (for manslaughter or murder generally) or an “essential, substantial and integral part of the killing (for first degree murder under s. 231(5)): Nette, at para. 73.
53. On the other side, paragraph 21(1)(b) envisages the situation in which the accused is not the main perpetrator of the crime but has helped the main perpetrator or perpetrators to commit such crime. In international law, aiders are qualified as accomplices. In the Pickton judgment (above) at paragraph 76, the Supreme Court stated the principles underlying the analysis of this paragraph:
73. … While it may be true that a separate party instruction on co-principal liability may not generally be necessary, given that its elements are the same as for sole principal liability, the same cannot be said of liability as an aider or abettor. Although the ultimate legal liability is the same for a principal or for an aider or abettor, the findings of fact necessary and the specific legal principles which apply to each are different.
76. The main focus of s. 21(1)(b) and (c) is on the intention with which the aid or encouragement has been provided. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal’s commission of the offence, with knowledge that the principal intends to commit the crime: R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] 1 S.C.R. 411, at paras. 14 and 16-18. To be found liable for first degree murder as an aider and abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate: Briscoe, at para. 17. Wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at para. 21.
54. To sum up, to succeed in the indictment of genocide by virtue of paragraph 21(1)(a), the Crown must convince the trier of facts that the accused shaped with other people the plan to kill the Tutsi, that he was present while the murders of the Tutsi were committed and that he acted in such a way as to contribute in a significant way to their death. It is not necessary to know whether there has directly been a link of causality between the acts of the accused and the death provided that the acts of the accused in the context of the joint attack against the victim or victims constituted a significant contributing cause of the death of the victim or victims. The accused and the other participants must share the same criminal intent, namely, the will to eliminate in whole or in part the Tutsi ethnic group.
55. Likewise, to succeed in the indictment of genocide by virtue of paragraph 21(1)(b), the evidence must convince the trier of facts that one or more individuals have intentionally caused the death of one or more Tutsi with the aim of eliminating this ethnic group and that the accused committed one or more acts which resulted in aiding in the commission of the murders, that he had the intention to facilitate such murders and that he knew the genocidal intention of the author or authors of the murders of these Tutsi. On the contrary, it is not necessary for the accused to be he himself motivated by the desire to destroy the Tutsi ethnic group provided that he knew that such was the aim of the author or authors of the crime at the time of the intentional murder of the Tutsis.
56. In the judgment Vasilyevic No. IT-98-32A, 25 February 2004, para 102, the International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeal Chamber clearly explained the different concepts of participation as an co-perpetrator (21(1)(a)) and participation as an accomplice [aider and abettor] (21(1)(b)), with regard to both the acts and the mental element.
(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.
(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.
57. Mrs. Nerenberg, relying on the ICTY Kvocka IT-38-30 judgment, of 2 November 2001, claims that in order to be guilty of complicity, the contribution given must be of a kind which, in a substantial or significant way, enables the realization of the plan of the author of the crime.
58. In the judgment Zazai v. Canada [2005] 303, para 16, the Federal Court of Appeal seems to adopt this standard. It must be understood that in Zazai, the issue the Court had to decide upon was whether the notion of complicity was excluded from the CAHWCA. The Court decided that the CAHWCA included the notion of complicity as participation to the perpetration of a crime by aiding the main perpetrator of the crime[,] but did not pronounce itself on the degree of aid required.
59. Mrs. Boucher pleads that the extract of the Kvocka judgment on which Mrs. Nerenberg is relying upon was repudiated by the ICTY Appeal Chamber IT-98-30/IA 28 February at para. 97 and 98.
60. I hesitate to rely on the passage invoked by Mrs. Boucher in order to decide upon this issue. I conclude that the tribunal at that moment was considering the degree of participation in the much broader context of participation in a joint criminal enterprise: see para. 96.
61. The court in Kvocka analyzes the specific principles which distinguish accomplice from co-perpetrator at paragraphs 88 to 92:
88. The Trial Chamber considered that a co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and actively furthers the enterprise. An aider or abettor, on the other hand, need not necessarily share the intent of the other participants; he need only be aware that his contribution assists or facilitates a crime committed by the other participants. The Trial Chamber held that the shared intent may be inferred from the knowledge of the criminal nature of the enterprise and the continued significant participation therein. It acknowledged that there may be difficulties in distinguishing between an aider or abettor and a co-perpetrator, in particular in the case of mid-level accused who did not physically commit crimes. When, however, an accused participated in a crime that advanced the goals of the criminal enterprise, the Trial Chamber considered him more likely to be held responsible as a co-perpetrator than as an aider or abettor.
90. Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.
91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.
92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.
62. I conclude that it would be correct to use the term “actual aid”, which is used by the Supreme Court in the Pickton judgment. It would be correct to speak of physical or tangible aid. These expressions would fit with the sense of the expression “[to make a] substantial contribution to the crime” used by the Appeal Chamber in Kvocka. I am of the opinion that regarding international criminal prosecution, one must refer to the case law of the International Criminal Tribunal [ICTY] to the maximum extent possible. I therefore adopt the expression “[to make a] substantial contribution to the crime” for the purposes of this trial.
1188. … [E]very participant to the deadly attacks at stake [the attacks against the Tutsi which took place between April and July 1994 at the Mugonero Hospital complex, at Gitwe, Murambi and Bisesero] who put in place one or more acts which contributed in a significant way to the death of one or more Tutsi and who shared, along with other participants, the plan of causing the death of the Tutsi in order to destroy in whole or in part their ethnicity, is guilty of genocide.
1189. … [E]very person who has committed one or more acts which have substantially contributed to the perpetrators’ commission of the deadly attacks at stake, with the intention to facilitate the perpetration of the attacks and knowing the genocidal plan of the perpetrators, is guilty of genocide.
1190. Likewise, every participant in one or more of the deadly attacks at stake is guilty of a crime against humanity as a co-perpetrator pursuant to paragraph 21(1)(a) if he has committed one or more acts which have contributed in a significant way to the death of one or more Tutsi with the intention to cause the death of [such] Tutsi and while knowing that the deadly attack or attacks he was participating to were part of a widespread or systematic attack against the Tutsi.
1191. Pursuant to paragraph 21(1)(b), a person who commits one or more acts which provide a substantial contribution to the attackers in the perpetration of one or more of the attacks at stake while having the intention to facilitate the perpetration of such deadly attacks and knowing that the attack or attacks were part of a widespread or systematic attack against the Tutsi ethnic group, is guilty of having committed a crime against humanity. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 46–62 and 1188–1191.
Canada
In 2013, in the Ezokola case, Canada’s Supreme Court allowed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo, remitting the matter to the Refugee Protection Division of the Immigration and Refugee Board. The Court stated:
I. Introduction
1. Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.
2. While principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.
3. Guilt by association, however, is not one of them.
4. This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?
5. In contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order …
6. Aware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.
7. However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts …
8. While individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group – a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.
9. This contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.
10. We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. …
D. The Board Must Rely on International Law to Interpret Article 1F(a)
42. Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 82 and 126.
45. International criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954:
When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the extermination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS.
50. Article 25 of the [1998 ICC] Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law …
51. That said, we may not rely exclusively on the approach of the International Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of international criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts … Article 1F(a) of the Refugee Convention refers generally to international instruments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute … In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions . . . which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals.
52. As explained above, we are concerned here with the dividing line between mere association and culpable complicity. While further distinctions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are serious reasons for considering that an individual has committed an international crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusionary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, common purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence.
53. These two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group …
E. Common Purpose Under Article 25(3)(d) of the [1998 ICC] Rome Statute
54. Article 25(3)(d) of the [1998 ICC] Rome Statute recognizes a broad residual mode of commission, by capturing conduct that “[i]n any other way contributes” to a crime committed or attempted by a group acting with a common purpose:
3. … a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
See Cassese’s International Criminal Law , pp. 175–76.
55. In other words, art. 25(3)(d) captures contributions to a crime where an individual did not have control over the crime and did not make an essential contribution as required for co-perpetration under art. 25(3)(a), did not incite, solicit or induce the crime under art. 25(3)(b), or did not intend to aid or abet a certain specific crime under art. 25(3)(c): Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial Chamber I), at para. 999; Prosecutor v. William Samoei Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial Chamber II), at para. 354; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-514, Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge Silvia Fernández de Gurmendi, concurring; Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp. 237–38.
56. The actus reus under para. (d) is distinguishable from the preceding paragraphs under art. 25(3) primarily by the magnitude of contribution required. While the jurisprudence is not completely settled, a pre-trial chamber of the ICC has said that the level of contribution required by art. 25(3)(d) is lower than the forms of commission under paras. (a) to (c). Where commission under para. (a) requires an essential contribution, and para. (c) a substantial one, Pre-Trial Chamber I has concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana, at paras. 279–85.
57. While the phrase “any other way” captures every imaginable contribution in a qualitative sense, it does not necessarily apply as broadly in a quantitative sense. Not every contribution, no matter how minor, will be caught by art. 25(3)(d). Setting the threshold at significant contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana, at para. 277:
… such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed.
58. The pre-trial chamber went on to explain that the significance of a contribution will depend on the facts of each case, “as it is only by examining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed”: Mbarushimana, at para. 284. On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to determine the degree of contribution required under art. 25(3)(d): Mbarushimana, at paras. 65–68.
59. As for the mens rea requirement, the text of art. 25(3)(d) states that a contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”. The Pre-Trial Chamber I explained in Mbarushimana, at para. 289, that individuals may be complicit in crimes without possessing the mens rea required by the crime itself:
Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged.
60. While the subjective element under art. 25(3)(d) can take the form of intent (accused intends to contribute to a group’s criminal purpose) or knowledge (accused is aware of the group’s intention to commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d) itself does not refer to conduct that might contribute to a crime or criminal purpose, and the mental element codified by art. 30 has been held to exclude dolus eventualis, that is, the awareness of a mere risk of prohibited consequences: Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision on the Confirmation of Charges, 15 June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial Chamber I took a different view of art. 30 in Lubanga, at paras. 351–55.
61. As the foregoing demonstrates, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contributing to a group’s crime or criminal purpose.
F. Joint Criminal Enterprise
62. Having considered the broadest form of accessory liability under the [1998 ICC] Rome Statute, we now turn to what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise [JCE]. …
63. Even though joint criminal enterprise is considered to be a form of principal liability, it is relevant to our task of setting threshold criteria for art. 1F(a) of the Refugee Convention. The line between principal and accessory is not necessarily drawn consistently across international and domestic criminal law. Joint criminal enterprise, like common purpose liability under art. 25(3)(d), captures “lesser” contributions to a crime than aiding and abetting. While aiding and abetting likely requires a substantial contribution to a certain specific crime, joint criminal enterprise and common purpose liability can arise from a significant contribution to a criminal purpose. To the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority: Prosecutor v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999 (ICTY, Appeals Chamber), at para. 229, cited in Lafontaine, at p. 237; Prosecutor v. Radoslav Brđanin, IT-99-36-A, Judgment, 3 April 2007 (ICTY, Appeals Chamber), at paras. 427–28 and 430. Joint criminal enterprise therefore captures individuals who could easily be considered as secondary actors complicit in the crimes of others …
64. In Tadić, the ICTY articulated three forms of joint criminal enterprise: paras. 196–206. For all three, the actus reus is a “significant” contribution to the criminal enterprise: Brđanin, at para. 430.
65. However, the mens rea varies for each form. The first form, JCE I, requires shared intent to perpetrate a certain crime. The second, JCE II, requires knowledge of a system of ill treatment and intent to further this system. The third, JCE III, requires intention to participate in and further the criminal activity or purpose of the group, and intent to contribute to the joint criminal enterprise or the commission of a crime by the group. Under JCE III, liability can extend to a crime other than one agreed to in the common plan if the accused intended to participate in and further the criminal activity of the group and (i) it was foreseeable that such a crime might be perpetrated by members of the group and (ii) the accused willingly took that risk. In other words, where an accused intends to contribute to the common purpose, JCE III captures not only knowing contributions but reckless contributions: see Tadić, at para. 228.
66. Despite the overlap between joint criminal enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes distinct. Commentators suggest that JCE III will not play a role at the ICC, largely because of the recklessness component …
67. For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s International Criminal Law, at p. 163. It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group: Brđanin, at paras. 427–28 …
G. Summary of Complicity under International Law
68. In sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group.
I. The Canadian Approach to Criminal Participation Has Been Overextended
78. Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention” … The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4.
79. In our view, the Federal Court’s approach in this case brings appropriate restraint to the test for complicity that had, in some cases, inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity …
81. In our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles.
82. It is well established in international criminal law that criminal liability does not attach to omissions unless an individual is under a duty to act … Accordingly, unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest: Ramirez, at pp. 319–20. Likewise, guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct …
83. Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or passive acquiescence. Such a reading would perpetuate a departure from international criminal law and fundamental criminal law principles. 
Canada, Supreme Court, Ezokola case, Judgment and Reasons for Judgment, 19 July 2013, §§ 1–10, 42, 45, 50–68, 78–79 and 81–83.
The Court also stated that “the defence of duress … is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the [1998 ICC] Rome Statute”. 
Canada, Supreme Court, Ezokola case, Judgment and Reasons for Judgment, 19 July 2013, § 86.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
6.4.1. There is no question that since they were recruited by unlawful armed groups – many of them by force or allegedly “voluntarily” – children and adolescent combatants are victims of the crime of unlawful recruitment of minors. As such they have a right to special assistance and protection from the State and that those who made them participate in the armed conflict be brought to criminal justice. At the same time, there is also no question that in the course of confrontations, minors can commit unlawful acts of the utmost gravity which in turn generate victims. If they survive, these victims or otherwise their relatives also have rights at the constitutional and international level that must be respected (namely, the right to know the truth, to justice and to reparations for violations of the criminal laws).
6.4.2. The finding and degree of criminal responsibility of each minor involved in the commission of a crime during the armed conflict must be evaluated individually, with all due attention not only to the minor’s low age and degree of psychological development, but also to a series of factors, including (a) the specific circumstances surrounding the commission of the crime and (b) the personal and social circumstances of the child or adolescent implicated, including if he or she is a victim of a war crime of the utmost gravity. Further, for every case it shall be necessary to establish (c) the degree of responsibility of those liable for recruiting the minor and those who gave the orders, (d) the responsibility of those who, in addition to acting as recruiters, have determined the minor’s behaviour inter alia [by threatening] … execution or extreme physical punishment … , and (e) the degree of influence of these circumstances on the elements required for the existence of a crime: that it be defined by law, that it goes against legally recognised values and the element of guilt. It will also be necessary to determine for each individual case (f) whether it is possible, based on the concrete and specific behaviour of the minor involved, that such behaviour be considered a political crime, in spite of having been recruited against his or her will if that were the case; and also (g) the link between the nature of these political crimes and the possible criminal responsibility arising from the connected crimes, as well as (h) behaviour that would be excluded from the scope [of political crimes], such as ferocity, barbarism, terrorism, etc. All of these are factors to which the judge shall accord the utmost importance when determining the criminal responsibility of a minor.
6.4.3 What is clear to the Court is that the ab initio and general impossibility of attaching any type of criminal responsibility to underage combatants, based on the argument that they are victims of the crime of forced recruitment, ignores each individual child or adolescent’s actions and presupposes that underage combatants do not commit punishable acts during armed conflict other than to form part of the illegal armed groups and that during the [armed] conflict they cannot ever decide to participate in the commission of crimes, which would also discard their responsibility for the eventual commission of heinous acts. Their status of victims of such a horrible war crime as is forced recruitment demands an energetic and decisive response from authorities for the protection and punishment of those responsible. However, criminal acts committed by minors must also be carefully and individually evaluated if it occurred during their participation in illegal armed groups together with the effects of such criminal behaviour on others’ rights because there are other rights involved – the rights of the victims – that cannot be discarded or ignored by the authorities.
6.4.4. The Court values the arguments presented by the plaintiffs and those intervening: If a minor has been made a victim of a war crime by having been forced to participate actively in an illegal armed group, there is no reason to subsequently criminally prosecute this minor for the mere fact of having belonged to such an irregular group. This is something that must be taken into account in each individual criminal prosecution at the moment of determining the responsibility of the minor involved because depending on the case at hand, the forced recruitment may have an effect on the different elements constituting the crime for which he or she is being prosecuted. At the same time, however, the Court recalls that the simple fact of belonging to an armed group is not the only punishable act that can be attributed to an underage combatant. During their participation in unlawful groups, underage combatants can commit murders, massacres, kidnappings, torture, terrorist acts, extortions and theft, thus committing serious violations of the fundamental rights of persons who become victims of such acts. To exclude from the start every type of criminal responsibility for these acts committed during the conflict based on the forced recruitment of which these minors were victims and without paying due attention to the circumstances of each individual case and each minor in particular constitutes in practice a complete disregard for the rights of the victims of such acts. It is more in accordance with the Constitution and the international obligations binding the State to evaluate on a case-by-case basis the effect which having become a victim of forced recruitment has on the determination of criminal responsibility as well as the effect of additional pressures or coercion to which they may have been subjected to. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, §§ 6.4.1.–6.4.4.
[footnote in original omitted]
The Court also held:
During every trial involving demobilised minors who used to belong to illegal armed groups it is necessary to take into account as a basic preliminary consideration their status as victims of the crime of forced recruitment and the circumstances affecting their behaviour while members of such groups, particularly when such circumstances can have an impact on the determination and degree of criminal responsibility, such as: their young age, their psychological development, the specific circumstances under which the crime was committed, the degree of responsibility attributable to those participating in the forced recruitment, as well as to the intellectual authors of the crimes who may be older, the effect of death threats or physical punishment on the minor’s will to commit the act, the circumstances surrounding the commission of a political crime in spite of the forced nature of the recruitment, the scope of pardons granted in specific cases, and many other factors that can have a concrete effect on the identification of each of the elements required to prove criminal responsibility. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 8.1.
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated: “The importance of customary norms of contemporary international humanitarian law is that they themselves provide the basis for determining the individual criminal responsibility of those who commit war crimes.” 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 68.
[T]here is no motive defined under the elements of the criminal offence of War Crimes against Civilians under Article 120(1) of the BCCRC … With regard to the subjective component, it is sufficient that a perpetrator is aware of the said circumstances in which he acts, that those acts are in contravention of rules of the international law, and that the perpetrator is aware of possible consequences arising from the unlawful behaviour, so that he either wants the occurrence of such circumstances (direct intent), or he consents to them (potential intent). The latter form of guilt is sufficient for the elements of the said criminal offence to be met. Based on the content of the evidence presented, the first instance court justifiably concluded that regardless of the fact that the accused was not in favour of creating so-called “Great Serbia”, through his actions he met all necessary objective and subjective elements of the criminal offence under Article 120(1) of the BCCRC. 
Croatia, Supreme Court of the Republic of Croatia, Ž.T. case, Judgment, 19 November 2003, pp. 5 and 7–8.
In order to establish [the] responsibility [of the accused] it suffices to find that he was actively involved in the criminal offence perpetrated during the war or armed conflict, and that he did so as a member of a military unit, and that it was done against civilians. 
Croatia, Supreme Court of the Republic of Croatia, T.D. case, Judgment, 9 May 2006, p. 3.
Democratic Republic of the Congo
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes. Regarding their individual criminal responsibility for destruction of property and for the crime against humanity of rape, the Court stated:
Criminal participation in the offence of destruction and damage without malicious intent
There is criminal participation when several persons take a more or less active and direct part in the perpetration of an offence … Criminal participation is punishable only in the cases provided for in articles 21 and 22 of the CPOL II [Penal Code] and under certain conditions, namely, the existence of a primary offence, an act of participation, a [nexus] between the act of participation and the damage caused, [and] a moral element …
Any participation is punishable only when it contributes to the commission of an offence. In the present case, the destruction and damage without malicious intent is the punishable offence concerned. The act of participation in a primary offence can only be an act of agreement or complicity.
There is connection or co-activity when the contribution to an offence is direct or indispensable, while there is complicity when the assistance provided is useful although not necessary … [T]he act of participation must be voluntary …
Criminal participation supposes the existence of a moral element consisting of the intention to participate in an offence with the aim of facilitating its preparation or execution … In the same vein, it has been decided in case-law that “criminal participation requires the intention of associating oneself with the perpetration of an offence” … In the present case, the defendants Kipeleka Nyembo, Okanga Likunda, Osumaka Loleka and Koti Okeke obliged men from the locality of Lieke Lesole to cut down fruit trees found alongside the road by threatening them with two weapons of war … By proceeding this way, they participated in this offence. They are thus co-perpetrators, especially since the material act of this offence is consummated … with the simple destruction of these trees which are protected by law.
Criminal participation [in the crime against humanity of rape]
There is criminal participation when several persons take a more or less active and direct part in the perpetration of an offence … Criminal participation is punishable only in the cases provided for in articles 21 and 22 of the CPOL II [Penal Code] and under certain conditions, namely, the existence of a primary offence, an act of participation, a [nexus] between the act of participation and the damage caused, [and] a moral element …
Not all participation is punishable. It becomes punishable only when it contributes to the commission of an offence. In the present case, the crime against humanity of rape is the primary offence concerned.
An act of participation in a primary offence can only be an act of co-activity or complicity, which are concepts that must be clarified. There is co-activity … when the contribution to an offence is direct or indispensable, while there is complicity when the assistance provided is useful although not necessary … The existence of one of these legal modes [of participation] is sufficient to constitute criminal participation. The act of criminal participation must be a voluntary act, and not an accidental fact.
Criminal participation requires a relation of cause and effect between the act which has been voluntarily carried out, and the consummation of the offence.
Criminal participation supposes the existence of a moral element consisting of the intention to participate in an offence with the aim of facilitating its preparation or execution … It has been decided in the case-law that “criminal participation requires the intention of associating oneself with the perpetration of an offence” …
In the present case, the ladies and young ladies … were raped in the period from 14 to 28 July 2007 by the defendants Kipeleka Nyembo Bumba, alias Kata Moto, Osumaka Loleka, alias Effacer Le Tableau, and Koti Okeke, alias Koy Likoloya Ngomba.
Thus, the material and positive act constitutive of the material element of the crime against humanity of rape … [was] committed [by them] as material perpetrators.
Regarding the defendant Okanga Likunda, alias Musique, who was part of this group, he participated in the crime against humanity of rape as co-perpetrator.
This defendant, who had relatives in the locality of Lieke Lesole, served as a guide. 
Democratic Republic of the Congo, Military Garrison Court of Kisangani, Basele Lutula and Others case, Judgment, 3 June 2009, pp. 15–16 and 24–26.
Democratic Republic of the Congo
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes. When discussing the civil liability of the defendant, the Court stated that its view on the obligation of the defendant to make reparation “does not deviate from the individual criminal responsibility of the defendant by omission”. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, § 156.
Denmark
In the Sarić case in 1994, the Danish High Court found a Bosnian Croat refugee guilty on numerous charges of war crimes committed in a Croat-run prison camp in Bosnia in 1993. The Court based its judgment namely on the grave breaches provisions in Articles 129 and 130 of the 1949 Geneva Convention III and Articles 146 and 147 of the 1949 Geneva Convention IV. 
Denmark, High Court, Sarić case, Judgment, 25 November 1994.
In 1995, Denmark’s Supreme Court upheld his conviction. 
Denmark, Supreme Court, Sarić case, Judgment, 15 August 1995.
Ethiopia
In the Mengistu and Others case in 1995 concerning the prosecution and trial of Col. Mengistu Haile Mariam and former members of the Derg for allegedly committing crimes against humanity and war crimes during the former regime between 1974 and 1991, the Special Prosecutor of Ethiopia, in a reply to the objection filed by counsels for the defendants, referred, inter alia, to the 1919 Treaty of Versailles, to the 1945 IMT Charter (Nuremberg) and Nuremberg trials and to the 1993 ICTY Statute. He stated:
Whosoever commits an international criminal offence in a capacity as a Head of State or responsible government official shall always be accountable for his acts and the punishment shall always be aggravated. Heads of State and other higher responsible government officials in any form of government are all required and obliged to know international crimes thereunder … By the same token, they must also be equally responsible and severely punished whenever they are found guilty of the commission of these acts. 
Ethiopia, Special Prosecutor’s Office, Mengistu and Others case, Reply submitted in response to the objection filed by counsels for defendants, 23 May 1995, § 1.6.
The Special Prosecutor further noted: “It is also known that there is a Geneva Convention which regulates the protection of the right of life of a person in time of war by providing for an effective means of penalty.” 
Ethiopia, Special Prosecutor’s Office, Mengistu and Others case, Reply submitted in response to the objection filed by counsels for defendants, 23 May 1995, § 1.13.
France
In the Javor case in 1994, a civil suit filed in France by Bosnian nationals alleging ill-treatment in a Serb-run detention camp, the Paris High Court found that it had jurisdiction over the claims of war crimes. In its consideration of the charge, the Court focused on the grave breaches of the 1949 Geneva Conventions. 
France, Tribunal de Grande Instance de Paris, Javor case, Order establishing partial lack of jurisdiction and the admissibility of a civil suit, 6 May 1994.
The Court of Appeal of Paris reversed this decision and held, inter alia, the absence of direct applicability of the 1949 Geneva Conventions. 
France, Court of Appeal of Paris, Javor case, Judgment, 24 November 1994.
Germany
In the Djajić case in 1997, Germany’s Supreme Court of Bavaria tried a national of the former Yugoslavia. In its judgment, the Court referred to the 1949 Geneva Convention IV and the grave breaches regime. It considered the conflict to be an international conflict (in June 1992) and regarded the victims as “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. The accused was found guilty of complicity in 14 counts of murder and 1 count of attempted murder. 
Germany, Supreme Court of Bavaria, Djajić case, Judgment, 23 May 1997.
Germany
In the Jorgić case before Germany’s Higher Regional Court of Düsseldorf in 1997, the accused, a Bosnian Serb, was tried for acts committed in 1992 in Bosnia and Herzegovina which were punishable under the German Penal Code. The Court referred, inter alia, to Article 147 of the 1949 Geneva Convention IV. It considered the conflict to be an international conflict in 1992, and the victims to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. The accused was found guilty of complicity in genocide, in conjunction with murder, dangerous bodily harm and deprivation of liberty. 
Germany, Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), Jorgić case, Judgment, 26 September 1997.
In 1999, the Federal Court of Justice upheld the conviction in the Jorgić case for the most part. 
Germany, Federal Court of Justice (Bundesgerichtshof), Jorgić case, Judgment, 30 April 1999.
In 2000, the Federal Constitutional Court confirmed that the accused could be tried by German courts and under German penal law. 
Germany, Federal Constitutional Court (Bundesverfassungsgericht), Jorgić case, Decision, 12 December 2000.
Germany
In the Kusljić case in 1999, Germany’s Supreme Court of Bavaria tried a national of Bosnia and Herzegovina for crimes committed during 1992 in the territory of Bosnia and Herzegovina. The accused was sentenced to life imprisonment for, inter alia, genocide in conjunction with six counts of murder. 
Germany, Supreme Court of Bavaria (Bayerisches Oberstes Landesgericht), Kusljić case, Judgment, 15 December 1999.
In 2001, the Federal Court of Justice revised this judgment into a life sentence for, inter alia, six counts of murder. It considered the acts of the accused to be grave breaches in the meaning of Articles 146 and 147 of the 1949 Geneva Convention IV. 
Germany, Federal Court of Justice (Bundesgerichtshof), Kusljić case, Decision, 21 February 2001.
Germany
In the Sokolović case before Germany’s Higher Regional Court of Düsseldorf in 1999, a Bosnian Serb accused of acts committed in 1992 in Bosnia and Herzegovina was sentenced for complicity in genocide, deprivation of liberty and dangerous bodily injury. 
Germany, Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), Sokolović case, Judgment, 29 November 1999.
In 2001, the Federal Court of Justice upheld this judgment and referred, inter alia, to Articles 146 and 147 of the 1949 Geneva Convention IV and provisions of the German Penal Code. The situation in 1992 in Bosnia and Herzegovina was qualified as an international armed conflict and the victims were considered to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. 
Germany, Federal Court of Justice (Bundesgerichtshof), Sokolović case, Judgment, 21 February 2001.
Israel
In its judgment in the Eichmann case in 1961, Israel’s District Court of Jerusalem rejected arguments that the acts of which Eichmann was accused constituted acts of State for which Germany alone was responsible. The Court relied on the repudiation of the doctrine of act of State, stating that this had been acknowledged by, inter alia, the 1945 IMT Charter (Nuremberg) and the Nuremberg judgments, by the US Military Tribunal’s decision in the Altstötter case (The Justice Trial), by UN General Assembly Resolution 96 (I) and by Article 4 of the 1948 Genocide Convention. 
Israel, District Court of Jerusalem, Eichmann case, Judgment, 12 December 1961.
The Court quoted the US Supreme Court judgment in the Quirin case, stating: “The principle of international law which, under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law.” It went on to state:
It is true that under international law Germany bears not only moral, but also legal, responsibility for all the crimes that were committed as its own “acts of State”, including the crimes attributed to the accused. But that responsibility does not detract one iota from the personal responsibility of the accused for his acts. 
Israel, District Court of Jerusalem, Eichmann case, Judgment, 12 December 1961, § 28.
Referring to Article 4 of the 1948 Genocide Convention, the Court noted:
This Article affirms a principle recognized by all civilized nations … and inasmuch as Germany, also, has adhered to this Convention, it is possible that even according to Kelsen – who requires an international convention or the consent of the State concerned – there is no longer any basis for pleading “act of State”. But the rejection of this plea does not depend on the affirmation of this principle by Germany, for the plea had already been invalidated by the law of nations. For these reasons we reject the plea of “act of State”. 
Israel, District Court of Jerusalem, Eichmann case, Judgment, 12 December 1961, § 28.
Israel
In the Eichmann case in 1962, Israel’s Supreme Court upheld the lower court’s decision. In a part of the judgment dealing with the question of whether Israel’s Nazis and Nazi Collaborators (Punishment) Law of 1950 was in conformity with principles of international law, the Supreme Court held: “The crimes created by the Law and of which the appellant was convicted must be deemed today as having always borne the stamp of international crimes, banned by the law of nations and entailing individual criminal responsibility.” 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962, § 10.
In the part of the judgment dealing with the character of international crimes, it went on to affirm its “view that the crimes in question must today be regarded as crimes which were also in the past banned by the law of nations and entailed individual criminal responsibility” and stated as to the “features which identify crimes that have long been recognized by customary international law” that:
These include, among others, the following features: these crimes constitute acts which damage vital international interests; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilized nations. The underlying principle in international law regarding such crimes is that the individual who has committed any of them and who, when doing so, may be presumed to have fully comprehended the heinous nature of this act, must account for his conduct. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962, § 11.
As to individual responsibility for war crimes “in the conventional sense”, the Supreme Court held:
It will be recalled that the reference here is to a group of acts committed by members of the armed forces of the enemy which are contrary to the “laws and customs of war”. These acts are deemed to constitute in essence international crimes; they involve the violation of the provisions of customary international law which obtained before the Hague Conventions of 1907, the latter merely “declaring” the rules of warfare as dictated by recognized humanitarian principles. Those crimes entail individual criminal responsibility because they challenge the foundations of international society and affront the conscience of civilized nations. When a belligerent State punishes for such acts, it does so not only because persons who were its nationals – be they soldiers taken prisoner by the enemy or members of the civilian population – suffered bodily harm or material damage, but also, and principally, because they involve the perpetration of an international crime which all the nations of the world are interested in preventing.
The [1945 IMT Charter (Nuremberg)], with all the principles embodied in it – including that of individual responsibility – must be seen as “the expression of international law existing at the time of its creation; and to that extent (the Charter) is itself a contribution to international law”.
The outcome … is that the crimes set out in the Law of 1950 … must be seen today as acts that have always been forbidden by customary international law – acts which are of a “universal” criminal character and entail individual criminal responsibility. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962, § 11.
In another part of the judgment dealing with the submission of the defendant that his acts had constituted acts of State, the Supreme Court held:
The contention of counsel for the appellant is … that the acts done by his client for the realization of the “Final Solution” had their origin in Hitler’s decision to put that plan into effect and consequently they were purely “Acts of State”, responsibility for which does not rest on the appellant.
We utterly reject this contention, as did the District Court … There is no basis for the doctrine when the matter pertains to acts prohibited by the law of nations, especially when they are international crimes of the class of “crimes against humanity” (in the wide sense). Of such odious acts it must be said that in point of international law they are completely outside the “sovereign” jurisdiction of the State that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot shelter behind the official character of their task or mission, or behind the “Laws” of the State by virtue of which they purported to act. Their position may be compared with that of a person who, having committed an offence in the interests of a corporation which he represents, is not permitted to hide behind the collective responsibility of the corporation therefor. In other words, international law postulates that it is impossible for a State to sanction an act that violates its severe prohibitions, and from this follows the idea which forms the core of the concept of “international crime”, that a person who was a party to such a crime must bear individual responsibility for it. If it were otherwise, the penal provisions of international law would be a mockery … Indeed, even before the Second World War the defence of “Act of State” was not regarded as an adequate defence to the charge of an offence against the “laws of war” (a “conventional” war crime) … The plea of “Act of State” is rejected. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962, § 14.
Italy
In the Priebke case in 1996, Italy’s Military Tribunal of Rome found a German soldier and former member of the “SS” guilty of multiple first-degree murder charges, acts which it qualified as war crimes, for his role and participation in the 1944 Ardeatine caves killings when 335 persons (both civilians and members of the armed forces) were killed in reprisal for the killing of 33 German soldiers. The Tribunal considered the reprisal to be disproportionate to the acts which had led to the reprisal, and Priebke was found responsible for having drawn up a list of the names of the victims to be killed, for having checked the identity of the victims being transferred to the place of the killings, and for having shot two of the victims himself. However, the Tribunal found that the accused could not be punished for reasons of statute of limitations. 
Italy, Military Tribunal of Rome, Priebke case, Judgment in Trial of First Instance, 1 August 1996.
On appeal, the judgment was annulled by the Supreme Court of Cassation and another trial ordered. 
Italy, Supreme Court of Cassation, Priebke case, Judgment Cancelling Verdict of First Instance, 15 October 1996.
Italy
In the Hass and Priebke case in 1997 dealing with the same events as in the Priebke case, Italy’s Military Tribunal of Rome found the accused guilty of multiple charges of aggravated murder for their respective roles in the reprisal killings. It sentenced the accused for war crimes to imprisonment. 
Italy, Military Tribunal of Rome, Hass and Priebke case, Judgment in Trial of First Instance, 22 July 1997.
In its relevant parts, the judgment was confirmed by the Military Appeals Court and the Supreme Court of Cassation, although the Courts settled on life imprisonment. 
Italy, Military Appeals Court, Hass and Priebke case, Judgment on Appeal, 7 March 1998; Supreme Court of Cassation, Hass and Priebke case, Judgment in Trial of Third Instance, 16 November 1998.
Italy
In the Ercole case in 2000, Italy’s Tribunal of Livorno tried and sentenced a former paratrooper to 18 months’ suspended imprisonment for abusing his authority during his participation in a multinational peacekeeping operation in Somalia and, pending the outcome of connected civil proceedings, made him provisionally liable to the payment of 30,000,000 Italian lire to a Somali citizen who had been tortured. 
Italy, Tribunal at Livorno, Ercole case, 13 April 2000.
However, in 2001, the Court of Appeals at Florence declared that a crime of abuse of authority was covered by statutory limitations. 
Italy, Court of Appeals at Florence, Ercole case, 22 February 2001.
Netherlands
In its judgment in the Van Anraat case in 2005, the Hague District Court of the Netherlands stated:
[C]omplicity in war crimes … [does] not require a special intent of the perpetrator. The required intention of the accomplice in international administration of criminal justice is not essentially different form Dutch law on this subject. In as far as any differences can be pointed out, in the opinion of the court, these lie within the “acceptable margin”, as put into words by the legislator in the Explanatory Memorandum to the International Crimes Act (WIM):
“It would not be practical and cause unnecessary uncertainty, if the Dutch judge were to apply participation clauses and grounds for exemption from criminal liability in legal proceedings against international crimes, that are somewhat different from the provisions he is used to work with.” (Explanatory Memorandum, Parliamentary Documents II, 2001–2002, 28 337, nr. 3, page 29.)
The court establishes that the damages of the aggrieved parties have been caused by the dropping of bombs, filled with poison gas, by the government of Iraq. The proven facts with respect to the actions of the accused concern the supply of precursors for the production of the said poison gas. The violated norm of complicity in being a co-perpetrator of a violation of the laws and practices of war, also serves as a protection against damages such as the damages that the aggrieved parties have suffered. 
Netherlands, Hague District Court, Van Anraat case, Judgment, 23 December 2005, §§ 6.5.2 and 19.
In its judgment in 2007, the Hague Court of Appeal stated:
12.1.1 … it is an established fact that the defendant in 1985 and the following years supplied Thiodiglycol (TDG) to Iraq, knowing that this substance is a precursor for mustard gas. The Court is of the opinion that the defendant at least must have known that it was to be expected that the produced mustard gas would be implemented on the battle field, not only in the international armed conflict in which Iraq and Iran had been involved already for years, but also against the Kurds in their own country who had chosen the side of Iran, thus engaging themselves in the conflict.
For the judgment of the charges “being an accessory to the violation of the laws (and customs) of war by the rulers in Iraq by supplying them with the aforementioned precursor TDG” it is important to establish what role defendant’s deliveries have played in the production of mustard gas and the actual implementation of ammunition that had been filled with that gas, at the locations that are mentioned in the charges.
12.4. Legal framework of the ruling
Regarding the supplies of TDG to the Iraqi regime under consideration, the question needs to be answered whether the defendant (together with his co-perpetrator(s)) by doing so provided the opportunity and/or means to carry out the attacks described in the charges in 1987 and 1988 on the places referred to in Iraq and Iran. Article 48 of the Penal Code does not specify which interest the provided opportunity and/or means should have had for the committed criminal offence.
From case law administered by the Supreme Court it appears that it is not a requirement that the assistance offered should be indispensable (HR 15-12-1987 NJB 1988.99) or should have made an adequate causal contribution to the main offence (HR 8-1-1985 NJ 1988.6). It is sufficient when the assistance offered by the accessory has indeed promoted the offence or has made it easier to commit that offence (HR 10-6-1997 NJ 1979.585 concerning the provision of information). From an international criminal law perspective, these requirements for the contribution of the so-called “aider or abettor” are not essentially more severe. 
Netherlands, Hague Court of Appeal, Van Anraat case, Judgment, 9 May 2007, §§ 12.1.1 and 12.4.
Peru
In 2004, in the Indalecio Pomatanta Albarran case, Peru’s Supreme Court of Justice stated that “the commission of horrendous crimes and grave violations of human rights as defined by international human rights law and international criminal law can never be considered an ‘act of duty’”. 
Peru, Supreme Court of Justice, Permanent Criminal Chamber, Indalecio Pomatanta Albarran case, Judgment, 17 November 2004, § 7.
Peru
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated: “The function of the judiciary within its commitment to democracy and the law is to avoid impunity for crimes constituting serious violations of human rights and of international humanitarian law, irrespective of who is responsible for such crimes.” 
Peru, Supreme Court of Justice, Second Provisional Criminal Chamber, Lucanmarca case, Judgment, 13 October 2006, p. 99.
Peru
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement case) and the murder and injury of numerous individuals in Barrios Altos and at the so-called La Cantuta university in Lima, all of which were carried out by State officials while the accused was president. The Court found:
[T]he murders and serious injuries [committed in Barrios Altos and at La Cantuta university] … plainly fulfil the requirements of crimes against humanity. The murders and serious injuries that occurred in Barrios Altos and at La Cantuta [university] are also crimes that manifest a State policy of selectively eliminating alleged members of subversive groups. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 717.
The Court considered the appropriate mode of criminal liability. The prosecution argued:
[T]he conduct of members of the Colina Detachment (Barrios Altos and La Cantuta case) and of the Army Intelligence Service (SIE Basement case), can be attributed to the ex-President … by recourse to the mode of criminal liability of perpetration-by-means. From the top of the State apparatus, he gave orders for the execution of the very serious acts with which these cases are concerned. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 718.
The Court found: “The dogmatic concept regarding the criminal liability [relevant in this case] is that of perpetration-by-means as a form of principal liability.” 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 718.
The Court further held:
PERPETRATION-BY-MEANS THROUGH THE CONTROL OF ORGANIZED POWER APPARATUSES
719. … Perpetration-by-means characterizes cases in which the crime is perpetrated by an official or a person behind the scenes through a direct intermediary or proxy. …
The dogmatic concept of perpetration-by-means is designed to ensure that the true perpetrator is held criminally liable for an offence that has been committed by a third person. It thus is a special form of perpetration in which the author carries out the punishable act through the intermediary and must therefore be held accountable for the criminal consequences of that unlawful act.
2. The General Premise: The existence of an organization.
726. STRUCTURED ORGANIZATION. CHARACTERISTICS. Perpetration-by-means through control over an organized apparatus of power is premised on “the prior existence of a structured organization”. The structured organization has a clear-cut hierarchy, in which the highest strategic level will be responsible for any criminal decisions and plans that may be adopted internally. These will subsequently be attributed to the direct perpetrator following the vertical structure inherent to the organization’s design.
3. Specific Premises and their Requirements.
727. FUNCTIONAL PREMISES AND REQUIREMENTS. The identification of hierarchical organizations which constitute apparatuses of organized power, and which are a basis for perpetration-by-means … , also requires the presence of what the German Federal Constitutional Court called “framework conditions”. This means that the following functional premises and prerequirements must be present: 1) command authority; 2) the organization’s disengagement from the legal order of the State; 3) the fungibility of the immediate perpetrator; and 4) the immediate perpetrator’s strong inclination to commit the act.
4. Objective Premises and Requirements.
4.1. Command authority.
729. CONCEPT …
Command authority is the capacity of the highest strategic level – the man behind the scenes – to issue orders or assign roles to subordinate parts of the organization. This capacity is obtained, or may be conferred, based on a position of authority, leadership, or rank derived from political, ideological, social, religious, cultural, economic, or other similar factors.
4.2. Deviation from the law. Modalities and Characteristics.
733. DEFINITION Another objective requirement of perpetration-by-means through the control of organized power apparatuses is the “disengagement” of or “deviation” from the law. … [This] means that the organization is structured, operates or acts outside the national and international legal system.
5. Subjective Premises and Requirements.
1. Fungibility. Classes.
737. … Fungibility is the first subjective premise that may attribute perpetration-by-means through the control of organized power. Fungibility is generally understood as a characteristic of the individual carrying out the crime according to which he or she can be exchanged or substituted by the highest strategic level in the operationalization and carrying out of the criminal plan.
2. The predisposition for the realization of an unlawful act.
741. Specifically, this category refers to the direct perpetrator’s psychological predisposition to carry out an order involving the commission of a crime. Here it is not the fungibility of the perpetrator that ensures that the order will be carried out, but rather the latter’s internalized interest and conviction in making it happen. It is a matter, then, of eminently subjective factors, which some authors identified through the justifying motivation, capable of transforming “millions of people into potential and obedient instruments”. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, §§ 719, 726–727, 729, 733, 737, and 741.
The Court then considered the difference between perpetration-by-means and superior responsibility in international criminal law. The Court found:
742. … It is important to distinguish between perpetration-by-means through the control of organized power apparatuses and other modalities of imputation which have been developed in international criminal law in order to attribute criminal responsibility to strategic levels of State or State-derived power structures. …
743. … [S]uperior responsibility refers to … commission by omission and generates the responsibility of the individual who commands the direct perpetrator of the crime.
744. … [B]ecause of its characteristics and requirements, [superior responsibility] … differs from perpetration-by-means through the control of organized power apparatuses. … [Perpetration-by-means] is a form of commission which, however, is transferred from an order issued at the highest strategic level to the concrete execution of the ordered act by a proxy.
The [1998] Rome Statute shows and develops this difference well. The Rome Statute regulates both modalities of imputation as two distinct levels of intervention and criminality of strategic organs that are linked to the commission of crimes violating human rights. Essentially, Article 25, paragraph 3, sub-paragraph a) [of the Rome Statute] precisely identifies perpetration-by-means (“Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”). In contrast, Article 28 [of the Rome Statute] defines in detail the omissions which engage the responsibility of the designated superior (“… as a result of his or her failure to exercise control properly …”). 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, §§ 742–744.
[footnotes in original omitted; emphasis in original]
In the presence of the defendant, the Public Prosecutor and the plaintiff, and in public:
The acts that [Dusingize] has been accused of:
The Court
Considering the evidence given by the prosecution witnesses stating that they saw everything that Alexis Dusingize did; including: [witness VNK], who was one of the witnesses who saw [Dusingize] during the attack that Alexis Dusingize was in command of and who saw that, during this attack, … the witness’ younger brother … was discovered while in hiding and killed.
Considering that Alexis Dusingize accepts that he left Nyamata on motorbike and headed towards Kibenga accompanied by his followers;
Considering that Alexis Dusingize accepts that he requested to see identity cards at the roadblocks; …
Considering that those who are seeking compensation have declared that their property was pillaged or that their property was destroyed during the hostilities and that members of their families were victims of the hostilities, and, therefore, they must be compensated for all of this by Alexis Dusingize along with the Rwandan State as he was an authority responsible for assisting the mayor of the Commune of Kanzenze;
Concluding that Alexis Dusingize knew the objective of the murders as he brought his family by motorbike to a place of refuge via the public highway while claiming that he was a wanted man;
Finds that, upon returning to his home in Kibenga, he went to the roadblock; a fact which he himself accepts.
Considering that Alexis Dusingize committed the act of identifying Tutsis in order to separate them from the others and that he himself admits to having committed these acts;
Considering the attacks that he has been accused of, and which he was the leader of, led to the extermination of a number of people, which he himself accepts;
Considering that the evidence from the Prosecutor is well founded;
On returning from his place of refuge, Alexis Dusingize did not undertake the work which he was responsible for in the Commune of Kanzenze, but instead left for Kigali where he had found work in the Ministry of Public Works where he was arrested;
For all these well-founded reasons, in the presence of the defendant and the Public Prosecutor … ;
Pursuant to Decree No. 08/75 of 12/02/1975 [approving and ratifying various international conventions on human rights, disarmament, and the prevention and repression of acts that may endanger peace between people and nations], Article 2 of the [2000] ICTR [International Criminal Tribunal for Rwanda] [Statute] established with a view to prosecuting the criminals responsible for the genocide in Rwanda, and Organic Law No. 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990;
Pursuant to Articles 91 and 312 of Books I and II of the Rwandan Penal Code;
Having regard to Articles 281, 282 and 283 as amended of Book II of the Rwandan Penal Code (RPC);
Having regard to Articles 91 and 168 as amended of Books I and II of the RPC;
Having regard to Articles 27 [stating that the Public Prosecution Department represents, as of right or upon request, the civil interests of minors and others who do not have legal representation] and 30 [on liability for damages for criminal acts committed and on awarding damages to victims not yet identified] as amended of Organic Law No. 08/96 of 30/08/1996 referred to above, with Article 2 [classifying persons accused of offences into categories] of the Organic Law placing him in Category 1 [subparagraph] “b” [of the offenders listed therein];
Confirms that the offences that Alexis Dusingize is accused of having committed are well-founded;
Confirms that the four offences that Alexis Dusingize has been accused of are well-founded, as detailed in the accusations that were made, and were committed in ideal concurrence of offences, which is why he must receive the death penalty as punishment;
Dismisses Alexis Dusingize, sentences him to death and orders that all [of his] property be seized from wherever it may be located. 
Rwanda, Court of First Instance of Nyamata, Dusingize case, Judgment, 12 March 1997, pp. 1–2.
Charges [brought against Gatanazi]:
Charges:
1. Between April and July 1994, in the Kagarama sector in the Commune of Kicukiro, Prefecture of Kigali City (PVK) [Préfecture de la Ville de Kigali, in the Republic of Rwanda, as either the perpetrator or accomplice, committed offences constituting the crime of genocide as provided for in the Convention [on the Prevention and Punishment of the Crime of Genocide] of 09/12/1948 ratified by Rwanda on 12/02/1975 with Decree No. 08/75, with these offences punishable under Organic Law No. 08/96 of 30/08/1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
3. Forming a criminal association with the aim of exterminating the Tutsi, with this offence being contained in and punishable under Articles 281, 282 and 283 of the Rwandan Penal Code Articles 2a and 14a of Organic Law No. 08/96 of 30 August 1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
4. Murdering a number of people, including [victim MNY], [victim MKR] and his two children, and [victim MKB] and her two children, all of whom were killed because of their ethnicity. This offence is contained in and punishable under Articles 312 and 317 of the Rwanda Penal Code and Articles 2a, b and 14a of Organic Law No. 08/96 of 30 August 1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
5. Committing acts of sexual torture and raping Tutsi women, with these offences contained in and punishable under Article 360, second and third of the Rwandan Penal Code and Articles 2a and 14a of Organic Law No. 08/96.
6. Complicity in acts of sexual torture and in the rape of Tutsi women, with this offence being contained in and punishable under Articles 3, 2a and 14a of Organic Law No. 08/96 of 30/08/96 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990] and by Articles 89, 91,1° and 360 of the Rwandan Penal Code.
7. Forcibly entering the homes of private individuals, with this offence being contained in and punishable under Article 304 of the Rwandan Penal Code.
Considering that the Military Prosecutor wishes for the hearing of the … witness known as Diana to take place;
Considering that [DR] … was born in 1980 … ;
Considering that when asked whether she had heard the Interahamwe say they were sent by Chief Warrant Officer Rwahama, [DR] replied that she learnt this later when Rwahama asked them if the Interahamwe he had sent had raped either of them, then [LN] admitted to having been raped;
Considering that, in response to the question as to who saved them, [DR] replies that it was indeed Rwahama because before arriving at his home, they almost seemed done for;
Considering that the Military Prosecutor states that the … witness named [LM] received a certificate from Chief Warrant Officer Rwahama prohibiting anyone from harming her or her children since they were of the [NR] family, a Hutu that the Interahamwe had just killed;
Considering that, in response to the question of how she [witness LM] knows Chief Warrant Officer Rwahama, she replied that she met him for the first time during the festivities organised at the home of [NT], but she was unsure whether her husband and Rwahama knew each other;
Considering that she continued by explaining that it was [NT] who had introduced them, and that it was on this occasion that Chief Warrant Officer Rwahama declared that the Bakiga (the people from the north of the country) were so unreasonable that they had married Tutsi women;
Considering that she goes on to say that she recognized Chief Warrant Officer Rwahama through the windows of their house, which were large in size, and that the Chief Warrant Officer was accompanied by several armed individuals. Her husband left the house to observe them when suddenly shots were heard, which is why she thinks that her husband died from these shots as he died on 07/04/1994;
Considering that she goes on to say that the next day, Chief Warrant Officer Rwahama came to her house with a number of other individuals, and he asked her to open the door, then spoke in these terms: “Madame, the revolution is the revolution, all Tutsis must die”. Her child then pleaded with him by saying: “Papa Honoré, have pity on our mother, it is true that she is Tutsi but we are Hutus”;
Considering that she goes on to recall that, after learning that her husband was a native of Gisenyi, Chief Warrant Officer Rwahama left her a handwritten note prohibiting the wrongdoers from harming her;
Considering that the Military Prosecutor stated that the witness, Victor Habyalimana, would testify about the manner in which the attacks were carried out from Rwahama’s home on the 07/04/1994;
Considering that the Military Prosecutor asked him where the attacks most often originated from and who was directing them. He replied that certain attacks were carried out from the center of Kicukiro, while others were carried out from Rwahama’s home who lived in the lower part of the town of Nyanza[. He explained] that soldiers based at the earth station would meet at his home after coming via a trading center where weapons were distributed to them, and after their meetings they would hold a reception in a bar that was near his home;
Considering that when counsel for the defence asked Victor whether he used to possess a grenade as recorded in the minutes, that he responded that he used to possess some before the death of Habya[r]imana, and that they were sold in such a way that he himself bought three of them;
Considering that, when questioned about the nature of the weapons that they had at their disposal, he replied that some had bows while others had grenades;
Considering that when he was again asked to clarify whether they joined forces in order to carry out the attacks, he replied that these weapons were intended to be used in self-defence so they could not carry out attacks as soon as they had these weapons;
Considering that the Military Prosecutor stated that the witness has spoken the truth since no soldier can launch an attack without carrying out reconnaissance work on the ground, which is why they first went to Rwahama’s home as they were unfamiliar with the local population;
Finds that, between 1991 and 1992, Chief Warrant Officer Anaclet Rwahama met a group of individuals who included, amongst others, Gérard Butera, Victor Habyalimana, and Marc Muhamyangabo, at the bar run by a man named Viateur otherwise known as Kimuga;
Finds that on arrival at the bar, the Chief Warrant Officer expressed himself in these terms: “I left the Umutura area after killing many Tutsis, and now I am encountering them again here”. He was alone and armed with two pistols;
Finds that he turned around, looked at the owner of the bar who was infirm and insulted him by kicking him in the chest as confirmed by Gérard Butera during his hearing of 23/06/1998;
Finds that Chief Warrant Officer Anaclet Rwahama, in addition to this, also looked over to where the father of the infirm person was, who he also insulted by calling him a dirty old man, and then publicly expressed regret that they had killed Tutsis without ever managing to exterminate them. He promptly kicked him in the ribs, which caused him to collapse. This may be read in the minutes from Butera’s hearing of 26/06/1998, Victor Habya[l]imana’s hearing of 24/08/1998 and in those of Eugène Karuranga’s hearing of 01/07/1998;
Finds that Chief Warrant Officer Rwahama used to threaten the Tutsis who were living in Kagarama, that he constantly expressed his hatred towards them throughout his stay in Kagarama, as he himself admitted to the War Council by explaining that this behaviour was linked to the education that he had received since primary school, which did not stop even after enrolling in the army;
Finds that after the death of Habyarimana, the former President of the Republic of Rwanda, Chief Warrant Officer Anaclet Rwahama held meetings aimed at identifying those who they were calling criminals, namely the Tutsis. These meetings took place at the home of a man named Thomas … in participation with Mugenzi, Sindambiwe, Stanislas Butera and Mahame. All of these people were Interahamwe militia leaders in Kagarama as stated by [witness MK] during hearing No. 16;
Finds that from 07/04/1994, the Interahamwe repeatedly carried out attacks against the population of Kagarama who, however, fought back and resisted them until the Interahamwe retreated. When the population resisted, they withdrew and retreated to the home of Chief Warrant Officer Anaclet Rwahama in order to return with soldiers armed with rifles;
Finds that the population stood firm against them until 09/04/1994 when Chief Warrant Officer Rwahama sent heavily armed attackers who fired on the population with anti-tank rifles and 60mm mortars from 2pm until around 6pm;
Finds that those who survived these attacks took refuge that night at the CND Conseil National de Développment - the National Development Council, which was the former parliament of Rwanda]. Many others were injured, but could not flee, so they were killed on the spot, who included, in particular, [victim VH], [victim GN], [victim RM], [A]’s family comprised of his wife and three children, [victim KR] and his daughter named … [victim NS] and many others as contained in minutes of the hearing of Victor Habyalimana from 24/08/1998 … and the facts that Victor presented before the War Council;
Finds that Interahamwe often came to Kagarama where they would meet with soldiers at the home of Chief Warrant Officer Anaclet Rwahama in order to collect equipment, in particular rifles and grenades, before launching an attack;
Finds that the population united together in order to resist their attackers who they had successfully forced to retreat;
Finds that before carrying out further attacks these attackers would meet at the home of Anaclet Rwahama with other Interahamwe, … as explained by Marc Muhamyangabo during hearing No. 10;
Finds that between 08/04/1994 and 13/04/1994, Chief Warrant Officer Anaclet Rwahama and Butera apprehended two women and their five children, who they then took away with them while telling them that they were taking them to the CND [Conseil National de Développment - the National Development Council, which was the former parliament of Rwanda], which is where their inkotanyi brothers were;
Finds that they instead took them to a forest where several others had previously been executed, and that a meeting on how to kill them immediately began between Chief Warrant Officer Rwahama and his henchmen as some proposed death by shooting while Chief Warrant Officer Rwahama suggested killing them with a machete;
Finds that the oldest of these children was called [victim NYN];
Finds that during this meeting the mother of [victim NYN] addressed the Interahamwe in the following terms: “You are cowards, you have come to work, and here you are incapable of doing so”. At these words, the Chief Warrant Officer became angry and shot the old lady, and the latter died instantly;
Finds that [victim MKB], another woman who was among the group, spoke in the following terms: “What have you just done? You said that a single bullet was going to be enough for everyone and here you are using it to kill one single person”. Gatera then immediately fired at her, with Chief Warrant Officer Rwahama then ordering the children to lie down on the ground;
Finds that [victim NYN] lay down near to her mother’s dead body and that of her cousin [victim MKB] so that the blood of these victims ended up flowing towards her. The four other children were then immediately killed with machetes;
Finds that on 08/05/1994 two young girls, namely [DR], who was 14 years old at the time, and [LN], were apprehended by an Interahamwe named Iyakaremye who said he was leading them to Chief Warrant Officer Anaclet Rwahama so that he could decide their fate;
Finds that Chief Warrant Officer Anaclet Rwahama immediately recognised [LN] when Iyakaremye appeared before him with them. He then ordered the soldiers to leave them alone as he claimed that they were his children;
Finds that Chief Warrant Officer Anaclet Rwahama took them to his house, where he gave orders for some water to be heated so that they could wash themselves, and that they be given them something to eat after which he left;
Finds that in accordance with the order that he gave, they received water to wash themselves with and some food. On his return they spoke with him and told him what had happened to them. [LN] acknowledged that she had been raped while [DR] said that this had not happened in her case;
Finds that when it was time to go to bed, Chief Warrant Officer Rwahama indicated to [LN] which bedroom she was to sleep in and said that [DR] was going to spend the night with him. The two girls pleaded with him in vain to let them sleep in the same room;
Finds that, in line with what he had decided, Chief Warrant Officer Rwahama spent the night with … [DR] until the moment when he suggested she move closer to him, when [she] apologized to him reasoning that she was still too young to make love, but Chief Warrant Officer Rwahama turned a deaf ear, and he order her to comply by threatening her and reproaching her for being ungrateful when he had rescued her. He immediately undressed her and raped her as detailed by [DR] at her hearing of 15/07/1998 contained in Minutes No. 21 from the hearing as well as before the War Council;
Finds that during this period of war in April 1994, Chief Warrant Officer Rwahama visited a lady named [LM], and he asked her where her husband was. The lady answered that he had been killed. Following the explanations given to him by the lady, Rwahama understood that her husband was a Mukiga (people from the north of the country) like him, and this news troubled him. As a result of this, Chief Warrant Officer Rwahama put in writing the instruction that no one was allowed to hurt this woman. After that, nothing happened to her. All of this is contained in the minutes of [witness LM’s] hearing as well as in the document written by Chief Warrant Officer Rwahama on page 23 of the case file, and [witness LM] even testified to this before the War Council;
Finds that the Military Prosecutor has not provided irrefutable evidence of Chief Warrant Officer Rwahama’s complicity in the offence of sexual torture;
Finds that Chief Warrant Officer Rwahama admitted before the War Council that the following facts are correct:
Finds that Chief Warrant Officer Anaclet Rwahama bears part of the responsibility for the planning of the genocide as he organized meetings with Interahamwe militia leaders who included, amongst other, Stanislas Butera, Kukumba, and Tugiri. These meetings took place at Thomas’ home at the AIDR, and were aimed at determining ways of working that ensured no Tutsis could escape … Chief Warrant Officer Rwahama himself admitted these facts before the War Council ;
Finds that Chief Warrant Officer Rwahama incited certain Rwandans to exterminate their Tutsi brothers, he persecuted people belonging to this ethnic group well before the war of April 1994, and during this period he ordered the Interahamwe to kill certain members of the population of Kagarama because of their ethnicity or because of the help they had provided to Tutsis, in particular by taking care of their children. He was recognized on several occasions when among other Interahamwe, and he was armed with guns, which encouraged the latter as explained in the 3rd, 4th, 5th, 6th, 11th, 12th, 19th, [and] 20th statements of reasons. In addition to this, he admitted before the War Council that these facts are correct when he explained that his hatred of the Tutsi stemmed from the ideology he was taught during both his primary education and during his time serving in the army, notably by figures including Commander La Paix, Lieutenant Kamondo and Lieutenant Bahembera;
Finds that Chief Warrant Officer Rwahama supervised the genocide because he was presented with the people who were to be killed so that he could decide their fate, which is what he did in relation to the two girls, in this case [LN] and [DR], even if he raped them at a later stage, and in relation to [witness LM] whom he saved by giving her a document prohibiting anyone from harming her;
Finds that the particular nature of Chief Warrant Officer Rwahama’s authority is demonstrated by the fact that, after the killings, the Interahamwe would give him him reports describing the progress of the work in general, as has been explained by the Chief Warrant Officer himself before the War Council when he acknowledged that an Interahamwe named Butera and Sergeant Major Ntibiringirwa informed him of the deaths of [victim NR] and [victim KM], which demonstrates that the Chief Warrant Officer actually received such reports;
Finds that Chief Warrant Officer Rwahama became infamous in the massacres perpetrated against the Tutsi in Kagarama during the April 1994 war, because, as he himself repeatedly recognised before the War Council, in his capacity as Chief Warrant Officer he was highly respected. He would give instructions to kill certain people and would save whomever he wanted, he was distributing rifles and grenades, he personally killed several individuals, [and] he coordinated the operations of the soldiers and the Interahamwe when they were preparing to carry out attacks in Kagarama. All this was explained in the 19th, 20th, 21st and 35th statements of reasons;
Finds that insufficient proof has been provided of the guilt of Chief Warrant Officer Anaclet Rwahama in relation to the acts of sexual torture;
Finds that insufficient proof has been provided of Chief Warrant Officer Rwahama’s complicity in the acts of sexual torture;
Finds that responsibility for the offence with which Chief Warrant Officer Anaclet Rwahama has been charged of criminal association, as provided for and punishable under Articles 281, 282, and 283 of the Rwandan Penal Code, has been established;
Finds that responsibility for the offence with which Chief Warrant Officer Anaclet Rwahama has been charged of raping a minor under 16 years of ages, as provided for and punishable under Articles 360, subparagraph 3, of the Rwandan Penal Code, has been established;
Finds that responsibility for the offence with which Chief Warrant Officer Anaclet Rwahama has been charged of forcibly entering the homes of private individuals, as provided for and punishable under Article 304 of the Rwandan Penal Code, has been established;
Finds that Chief Warrant Officer Rwahama committed all these offences against the population of Kagarama because of their Tutsi ethnicity or because of the relationship that the population maintained with the Tutsis. In doing so, he is guilty of committing the crime of genocide as provided for in Article 1 of Organic Law No. 08/96 of 30 August 1996;
Finds that Chief Warrant Officer Anaclet Rwahama became infamous in the massacres perpetrated in the area he was staying in, as provided for by Article 2 of Organic Law No. 08/96 of 30 August 1996;
For all the above reasons, ruling publicly and in adversary proceedings;
Having regard to the Rwandan Penal Code, particularly Articles 89, 91, 281, 282, 283, 304, 312, 317, 360, subparagraphs 2, [and] 3 ;
Declares that Chief Warrant Officer Anaclet Rwahama’s responsibility for the charge of criminal association has been established, and consequently he must be punished for this;
Declares that Chief Warrant Officer Anaclet Rwahama’s responsibility for the charge of murdering a number of different people has been established, and he must be punished for this;
Declares that Chief Warrant Officer Rwahama’s responsibility for the charge of complicity in the murder of a number of different people has been established, and he must be punished for this;
Declares that Chief Warrant Officer Rwahama’s responsibility for the offence of sexual torture has not been established and he must be acquitted of this;
Declares that Chief Warrant Officer Rwahama’s responsibility for the offence of the rape of a minor under 16 years of ages has been established, and he must be punished for this;
Declares that Chief Warrant Officer Anaclet Rwahama’s responsibility for the offence of forcibly entering the homes of private individuals has been established, and he must be punished for this;
Declares that all the offences that Chief Warrant Officer Rwahama has been found guilty of arose in ideal concurrence;
Declares that Chief Warrant Officer Rwahama’s responsibility for all these charges has been established, as well as for having planned and supervised the genocide and inciting the population to commit it. He became infamous in the killings that were perpetrated where he was living, and, consequently, ought to be placed in the first category [of offenders contained in Article 2 of Organic Law No. 08/96 of 30 August 1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since October 1, 1990];
Declares that Chief Warrant Officer Rwahama has lost the court case;
Sentences Chief Warrant Officer Rwahama to death[.] 
Rwanda, War Council of the Republic of Rwanda, Rwahama case, Judgment, 24 November 1998, pp.1–2, 15, 18–20 and 23–32.
South Africa
In its judgment in the Basson II case in 2005, the Constitutional Court of South Africa stated:
[171] In deciding whether or not to grant condonation the [Supreme Court of Appeal] failed to … give consideration to the need to take account of South Africa’s international obligations in respect of upholding principles of international humanitarian law.
[172] War by its very nature is brutal. It involves the intentional and frequently cruel killing of human beings, using all the force that a state can muster. Yet the law declares firmly that all is not fair in love and war. Since ancient times throughout the globe humanity has imposed limits on what can be done in the course of armed conflict. Legal constraints on the manner in which war could be conducted were found in a diverse range of cultural traditions from antiquity onwards and established the basis for the adoption of universally accepted norms of conduct in times of war. Thus, recognition of the principle of individual responsibility for atrocities in war as violations of the law of nations occurred during an early and relatively immature stage of the development of international law generally. Prior to the establishment of the Nuremburg and Tokyo Tribunals after World War 2, the focus for trying such anciently condemned atrocities lay with national courts. The recent establishment of the International Criminal Court represents the culmination of a centuries-old process of developing international humanitarian law. It in no way deprives national courts of responsibility for trying cases involving breaches of such law which are properly brought before them in terms of national law. 
South Africa, Constitutional Court, Basson II case¸ Judgment, 9 September 2005, §§ 171–172.
Spain
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. In deciding upon one of the issues raised in the appeal on breach of the law, the court noted:
1. … [T]he application … of Article 611 and 608(3) PC [Penal Code (1995)], and failing this of Article 614 PC, on their own or in combination with the offence of homicide in Article 138 or of manslaughter in Article 142 PC, in so far as they concern civilians “protected” by the [1949] IV Geneva Convention and its [1977] Additional Protocol, is claimed [by the appellants].
2. Article 611 of the PC effectively punishes
“anyone who in the event of an armed conflict commits [any of the following acts], without prejudice to the penalty for the results of such acts, shall be punished with ten to fifteen years’ imprisonment:
1. Carries out or orders an indiscriminate or excessive attacks or makes the civilian population the object of attacks, reprisals or acts or threats of violence the final purpose of which is to spread terror”.
Meanwhile, Article 614 PC provides that:
“Anyone who, in the event of an armed conflict, commits or orders the commission of any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment”.
In addition, Article 608 of our PC [Penal Code (1995)] … entitled “Offences against Protected Persons and Objects in the Event of Armed Conflict” within the … [Title] dedicated to “Offences against the International Community” specifies that
“for the purposes of this chapter, protected persons are understood as:
3. The civilian population and individual civilians protected by the IV Geneva Convention of 12 August 1949 or Additional Protocol I of 8 June 1977”. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, §§ 1–2, p. 11–12.
[emphasis in original]
The Court also referred to norms of IHL relevant to the case under review, including Articles 146 and 147 of the 1949 Geneva Convention IV on grave breaches. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 13.
The Court upheld the appeal concerning breach of the law and held:
The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 16.
[emphasis in original]
The Court further held:
1. It is understood that jurisprudence only requires that there be a belief that an offence has been likely committed in order to institute proceedings, without it being necessary to certify that the accused persons are the authors of the offence, as determining the certainty of the existence [of an offence] is the responsibility of the sentencing tribunal. …
2. Due to their similarity with this matter, we must refer to what has been said in relation to the fifth and sixth issues raised by the previous appellants concerning the existence of rational indications of the commission of an offence which violate the ius in bello, namely the norms of International Humanitarian Law that must be observed by belligerents.
… As Section II of the Chamber has held, it would be implausible and therefore inadmissible to invoke error [to exclude criminal responsibility] when [the acts] concern “offences of a natural or elementary character that are evidently, and as a matter of general knowledge, prohibited” (STS 71/2004 of 2 February).
Nevertheless, it is important to note that the principle of self-defence cannot be applied even in the case of military operations that are supposedly defensive or in response to real prior aggressions … when a belligerent commits any of the actions classified as contrary to the Law of War, attacking in any of the described manners those considered to be “protected persons” according to Article 608 of the PC, regardless of the penalty for the results of such acts as provided in Article 611(1) of the same code, which there is no doubt that in the case of the [current] proceedings can be classified as the offence of homicide according to Article 138 PC.
In addition, as criminal responsibility is purely personal, the military doctrine known as “shock and awe” consisting of acts such as the bombardment of protected persons and objects in the event of armed conflict … results in the criminal responsibility of the person exercising control over the specific direction of the military operations. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(III), Octavo, §§ 1–2, pp. 17–18.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.” 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.
Switzerland
In the Grabež case in 1997, a person born in the former Yugoslavia was prosecuted by a Swiss Military Tribunal for violations of the laws and customs of war under the Swiss Military Criminal Code as amended on charges of beating and injuring civilian prisoners in the camps of Omarska and Keraterm in Bosnia and Herzegovina. The Tribunal held that it had jurisdiction under Articles 108(2) and 109 of the Swiss Military Criminal Code as amended over violations of the laws and customs of war, grave breaches of the 1949 Geneva Convention III, the 1949 Geneva Convention IV and the 1977 Additional Protocol I, and violations of the 1977 Additional Protocol II, but acquitted the accused for lack of sufficient evidence. 
Switzerland, Military Tribunal at Lausanne, Grabež case, Judgment, 18 April 1997.
Switzerland
In the Niyonteze case in 1999, a Swiss Military Tribunal convicted a Rwandan national and former burgomaster for, inter alia, grave breaches of IHL committed in Rwanda on the basis of common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II. The defendant had been charged, in the context of the Rwandan genocide in 1994, with inciting the population to kill Tutsis and moderate Hutus and with exhorting refugees to go back to their homes, with the intention of having them killed and taking their property. The Tribunal sentenced the accused to life imprisonment. 
Switzerland, Military Tribunal at Lausanne, Niyonteze case, Judgment, 30 April 1999.
In 2000, the Military Court of Appeals partially upheld the judgment, reducing the sentence to 14 years’ imprisonment. It found that the defendant was guilty under Article 109 of the Swiss Penal Code relating to violations of the laws of war, common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II. 
Switzerland, Military Court of Appeals, Niyonteze case, Judgment, 26 May 2000.
At the final instance, the Military Court of Cassation, partially dismissing the previous judgment, confirmed the findings on the guilt of the defendant. 
Switzerland, Military Court of Cassation, Niyonteze case, Judgment, 27 April 2001.
United Kingdom of Great Britain and Northern Ireland
In the Essen Lynching case in 1945 dealing with the liability of two soldiers and several civilians for the alleged killing of unarmed POWs during the Second World War in violation of the laws and usages of war, the UK Military Court at Essen (Germany) found the accused guilty, stating with regard to the latter that every one of them had in one form or another taken part in the ill-treatment which eventually led to the death of the victims. With regard to one of the soldiers, a Captain in the German army who had not been physically involved in the killing but had allegedly given instructions that the POWs should be taken to a certain place and that he had given the order in a loud voice so that it could be heard by a crowd gathering nearby, the Court found that he was guilty of being concerned in the killing for his positive utterances. 
United Kingdom, Military Court at Essen, Essen Lynching case, Judgment, 21–22 December 1945.
United Kingdom of Great Britain and Northern Ireland
In the Kramer case (Auschwitz and Belsen concentration camps case) in 1945, the UK Military Tribunal at Lüneberg admitted that:
There has not been universal agreement on the extent to which an individual can be held personally liable for breaches of such international agreements as the Hague Convention No. IV (Rules of Land Warfare) and the Geneva Prisoners of War Convention of 1929, according to the strict letter of which the responsibility for breach thereof lies on the State authority to which the perpetrator owes allegiance.
However, quoting the IMT’s opinion on the enforcement of the 1907 Hague Convention (IV) personally against its violators, the Court went on to state:
The trend of opinion and the practice followed by the Courts, however, has been to make the individual responsible for his acts in breach of international conventions, and this trend was illustrated on a high level by the decision pronounced by the International Military Tribunal at Nuremberg, that certain accused had made themselves criminals by waging war in breach of the terms of an inter-governmental agreement renouncing war undertaken as an instrument of national policy, the Briand-Kellogg Pact. 
United Kingdom, Military Tribunal at Lüneberg, Kramer case (Auschwitz and Belsen concentration camps case), Judgment, 17 September 1945.
United States of America
In the Quirin case in 1942, dealing with the trial, by a military commission, of German soldiers who had landed on US territory in 1942 and were charged, inter alia, with war crimes, the US Supreme Court, stating, however, that it was not “concerned with any question of the guilt or innocence of petitioners”, held:
From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War … Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offences against the law of war in appropriate cases.
In its ruling, the Supreme Court gave a list of cases in which individual offenders had been charged with offences against the law of war. 
United States, Supreme Court, Quirin case, Judgment, 31 July 1942.
United States of America
In the Yamashita case in 1946, in which the US Supreme Court was called upon to decide whether the accused, the military governor and commanding general of Japan in the Philippines between 9 October 1944 and 2 September 1945, was responsible for the violations of IHL committed by the troops under his command, the accused was tried for his responsibility as a commander. 
United States, Supreme Court, Yamashita case, Judgment, 4 February 1946.
However, one of the judges, in his dissenting opinion, referred to US military law and stated: “From this the conclusion seems inescapable that the United States recognizes individual criminal responsibility for violations of the laws of war only as to those who commit the offences or who order or direct their commission.” 
United States, Supreme Court, Yamashita case, Dissenting Opinion of Mr Justice Murphy, 4 February 1946.
United States of America
In the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg held:
As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the State in whose hands the perpetrators fall.
It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried and punished by the State of which they were nationals, by the offended State if it can secure jurisdiction of the person, or by an International Tribunal if of competent authorized jurisdiction …
The very essence of the prosecution case is that the laws, the Hitlerian decrees and the draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge. 
United States, Military Tribunal at Nuremberg, Altstötter case (The Justice Trial), Judgment, 4 December 1947.
United States of America
In its judgment in the Flick case in 1947, the US Military Tribunal at Nuremberg noted: “It can no longer be successfully maintained that international law is concerned only with the actions of sovereign states and provides no punishment for individuals.” The Tribunal also rejected the argument that the fact that the defendants were private individuals rather than public officials representing the State meant that they could not be criminally responsible for a violation of international law. Instead, it held: “International law … binds every citizen just as does ordinary municipal law … The application of international law to individuals is no novelty.” 
United States, Military Tribunal at Nuremberg, Flick case, Judgment, 22 December 1947.
United States of America
In its judgments in the Krauch case (The I.G. Farben Trial) and in the Von Leeb case (The German High Command Trial) in 1948, the US Military Tribunal at Nuremberg reiterated the principle of individual responsibility. 
United States, Military Tribunal at Nuremberg, Krauch case (The I.G. Farben Trial), Judgment, 27 August 1947–30 July 1948; Von Leeb case (The German High Command Trial), Judgment, 30 December 1947–28 October 1948.
United States of America
In its decision in the Karadžić case in 1995, the US Court of Appeals for the Second Circuit referred, inter alia, to the recognition, by the Executive Branch, of the liability of private persons for certain violations of customary international law and the availability of the Alien Tort Claims Act to remedy such violations. It held:
We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals … The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II. 
United States, Court of Appeals for the Second Circuit, Karadžić case, Decision, 13 October 1995.
United States of America
The Agent Orange case in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers, for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese Government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. With regard to individual criminal responsibility, the Court stated:
It is not a defense that the spraying of herbicides was on orders of the President: Authorization by the head of government does not provide carte blanche for a private defendant to harm individuals in violation of international law. See infra Part IX. In the Third Reich all power of the state was centered in Hitler; yet his orders did not serve as a defense at Nuremberg. Justiciability is not eliminated because of possible interference with executive power even in wartime. Rasul v. Bush, 124 S. Ct. 2686, 2698–99 (2004) (holding that district court had jurisdiction over claims asserted under ATS [Alien Tort Statute] by aliens being detained by United States government at its base in Guantanamo, Cuba); Youngstown, 343 U.S. 579. 
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, p. 100.
The Court further stated:
The government contractor defense is one peculiar to United States law. See supra Part VI. It does not apply to violations of human rights and norms of international law. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988) (limiting defense to claims for design defects); see also Zyklon B Case (Trial of Bruno Tesch and Two Others), 1–5 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93; United States v. Flick, 6 TRIALS OF WAR CRIMINALS 1187, 1198, 1202 (discussing necessity); United States v. Krupp, 9 TRIALS OF WAR CRIMINALS 1327, 1437–39 (same); see also infra Parts IX.C.-D. Defendants’ motion to dismiss on this ground is denied. See supra Part I.B.2.
The government contractor defense is essentially based on the concept that the government told me to do it, and knew as much or more than I did about possible harms, so I can stand behind the government (which cannot be sued because of its immunity). It is designed in part to save the government money in its procurement costs because suppliers, less concerned with the risk of suits, can eliminate some difficult insurance factors from cost projections.
As shown below in a discussion of the Nuremberg and other post-World War II criminal trials, this defensive notion has been rejected. It should not be recognized, as the law now stands, by courts protecting civilians and land from depredations contrary to international law. 
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, pp. 142–143.
United States of America
In 2007, in the Khulumani case before the US Court of Appeals for the Second Circuit, in which various plaintiff representatives of apartheid victims appealed the decision of a lower court that had dismissed claims under the Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA) made against various defendant corporations concerning alleged violations of international law, the Court of Appeals affirmed the lower court’s dismissal of the TVPA claims, but vacated portions of the lower court’s judgment dismissing the plaintiffs’ ATCA claims.
In a separate concurring opinion, Judge Katzmann stated:
I conclude that the recognition of the individual responsibility of a defendant who aids and abets a violation of international law is one of those rules “that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Flores, 414 F.3d at 248. Recognized as part of the customary law which authorized and was applied by the war crimes trials following the Second World War, it has been frequently invoked in international law instruments as an accepted mode of liability. During the second half of the twentieth century and into this century, it has been repeatedly recognized in numerous international treaties, most notably the Rome Statute of the International Criminal Court, and in the statutes creating the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). Indeed, the United States concedes, and the defendants do not dispute, that the concept of criminal aiding and abetting liability is “well established” in international law. Brief for the United States as Amicus Curiae, at 21.
The London Charter extended individual responsibility for crimes within its jurisdiction not only to “[l]eaders, organizers, [and] instigators” but also to “accomplices participating in the formulation or execution of a common plan or conspiracy to commit” any of the crimes triable by the Tribunal. London Charter art. 6. While the Charter’s language taken “literally … would seem to imply that the complicity rule did not apply to crimes perpetrated by individual action,” as opposed to by common plan, in practice the Tribunal “applied general principles of criminal law regarding complicity.” International Law Commission, Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, with commentaries, G.A.O.R., 5th session, Supp. No. 12, U.N. Doc. A/1316, PP 126–27 (1950) (“ ILC Principles”). Accordingly, when the International Law Commission (“ILC”) formulated the “principles recognized in the Charter … and in the judgment of the Tribunal” at the direction of the General Assembly, see Nuremberg Principles Resolution I, it omitted any indication of a limitation on accomplice liability. Principle VII provides that “[c]omplicity in the commission of a crime against peace, a war crime, or a crime against humanity … is a crime under international law.” ILC Principles, Principle VII. The ILC’s formulation of the principles is considered to be an authoritative rendering of the formal holdings of the Nuremberg Tribunal and is consulted as an authoritative source of customary international law by the ICTY and ICTR. See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment, P 526 (Sept. 2, 1998) (citing Principle VII to establish that “participation by complicity in the most serious violations of international humanitarian law was considered a crime as early as Nuremberg”); see also Prosecutor v. Milosevic, Case No. IT-02-54, Trial Chamber Decision on Preliminary Motions, PP 29–30 (Nov. 8, 2001) (finding that “[t]he customary character of [a] rule [of individual responsibility] is further supported by its incorporation in a wide number of other instruments,” including, inter alia, the ILC Principles).
We have previously acknowledged the contribution that Control Council Law No. 10 and the tribunals that applied it have made to customary international law. In Flores, to support our conclusion that “[c]ustomary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable against individuals since World War II,” 414 F.3d at 244 n.18, we pointed specifically to Brigadier General Taylor’s assessment that “the major legal significance of the Law No. 10 judgments lies … in those portions of the judgments dealing with the area of personal responsibility for international law crimes,” Taylor, supra, at 109, quoted in Flores, 414 F.3d at 244 n.18. The United States Government, as amicus in this case, similarly acknowledges the role this law has played in establishing the availability of aiding and abetting liability in modern international criminal tribunals. Brief for the United States as Amicus Curaie, at 21 n.11.
Having been accepted as one of the core principles of the post-World War II war crimes trials, the individual criminal responsibility of those who aid and abet violations of international law was repeatedly reflected in international treaties thereafter.
Aiding and abetting liability continues to be recognized and enforced in international tribunals. The Statutes creating the ICTY and ICTR were adopted by resolutions of the Security Council. In their respective sections on individual criminal responsibility, both statutes impose individual liability on any person “who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution” of a crime. Statute of the International Tribunal for the Former Yugoslavia, art. 7, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (hereinafter ICTY Statute); Statute of the International Criminal Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (hereinafter ICTR Statute).
As with the London Charter, the recognition of aiding and abetting liability in the ICTY Statute is particularly significant because the “Individual Criminal Responsibility” section of that statute was intended to codify existing norms of customary international law.
[T]hose who assist in the commission of a crime with the purpose of facilitating that crime would be subject to aiding and abetting liability under the statutes governing the ICTY and ICTR. My research has revealed no source of international law that recognizes liability for aiding and abetting a violation of international law but would not authorize the imposition of such liability on a party who acts with the purpose of facilitating that violation (provided, of course, that the actus reus requirement is also satisfied).
Accordingly, I conclude that a defendant may be held liable under international law for aiding and abetting the violation of that law by another when the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime. Furthermore, based on this review of international law’s treatment of aiding and abetting liability over the past sixty years, I conclude that aiding and abetting liability, so defined, is sufficiently “well-established [and] universally recognized” to be considered customary international law for the purposes of the ATCA.
The international tribunals’ approach is consistent with the understanding that aiding and abetting is a theory of liability for acts committed by a third party. As we have recognized in our domestic criminal law, “aiding and abetting ‘does not constitute a discrete criminal offense but only serves as a more particularized way of identifying persons involved’” in the underlying offense. United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999) (quoting United States v. Oates, 560 F.2d 45, 54 (2d Cir. 1977) (internal quotation marks omitted)); see also Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006) (explaining that “aiding and abetting is a theory for holding the person who aids and abets liable for the tort itself”). International law is consistent with domestic law on this point. See, e.g., Prosecutor v. Kunarac, Case Nos. IT-96-23-T & IT-96-23/1-T, Trial Chamber Judgment, P 391 (Feb. 22, 2001) (“As opposed to the ‘commission’ of a crime, aiding and abetting is a form of accessory liability.”); Akayesu, Trial Chamber Judgment, P 527 (defining an accomplice as “someone who associates himself in an offence committed by another”); see also Hamdan, 126 S. Ct. at 2785 n.40 (“The International Criminal Tribunal for the former Yugoslavia (ICTY), drawing on the Nuremberg precedents, has adopted a ‘joint criminal enterprise’ theory of liability, but that is a species of liability for the substantive offense (akin to aiding and abetting), not a crime on its own.”). Because aiding and abetting is a generally applicable means of identifying who should be held responsible for a particular act, rather than a necessary element of the act itself, it is more reasonable to consider whether the theory is accepted as a general principle of customary international law than to ask whether each substantive norm that proscribes a specific conduct encompasses liability for aiding and abetting. 
United States, Court of Appeals for the Second Circuit, Khulumani case, Separate Concurring Opinion of Judge Katzmann, 12 October 2007.
In a further separate concurring opinion, Judge Hall stated:
Because I intend aiding and abetting liability to attach only in this limited way [cases in which a defendant played a knowing and substantial role in the violation of a clearly recognized international law norm], I think it helpful to provide examples illustrating the three ways in which I believe a defendant may incur liability for aiding and abetting violations of customary international law. The first type of aiding and abetting liability is designed to capture the case of a principal tortfeasor who seeks assistance from a defendant to commit an act that violates international law norms, such as the extrajudicial killing of an opposition political figure. The second is designed to cover circumstances where the alleged aider and abettor is accused of having purchased security services with the knowledge that the security forces would, or were likely to, commit international law violations in fulfilling their mandate. The allegations raised in the cases of Unocal, 395 F.3d 932, and Wiwa v. Royal Dutch Petroleum Co., No. 96-Civ-8386, 2002 U.S. Dist. LEXIS 3293, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002), would be reached by this prong. In Unocal, the alleged aider and abettor corporation was accused of having purchased security services from a military government to further develop its oil operations, with the knowledge that the security forces would likely commit international law violations in fulfilling this mandate. 395 F.3d at 938--42. In Wiwa, the plaintiffs alleged that the defendants directed and aided government security forces in violating plaintiffs’ rights by providing logistical support, transportation, and weapons to government security forces to ensure that the corporation’s business activities could proceed “as usual.” Wiwa, No. 96-Civ-8386, 2002 U.S. Dist. LEXIS 3293, 2002 WL 319887, at *2.
The Zyklon B Case provides a clear example of when liability would attach in the third circumstance, when a defendant provides “the tools, instrumentalities, or services to commit [human rights] violations with actual … knowledge that those tools, instrumentalities or services will be (or only could be) used in connection with that purpose.” See Trial of Bruno Tesch and Two Others (The Zyklon B Case), 1 Law Reports of Trials of War Criminals 93 (1947) (British Military Ct., Hamburg, Mar. 1-8, 1946). In that case, Bruno Tesch was the sole owner of a firm that distributed Zyklon B, a highly dangerous poison gas, to Auschwitz and other concentration camps from 1941 to 1945. Zyklon B previously had been used as a disinfectant in public buildings. The evidence showed that Tesch himself proposed using the gas to exterminate human beings, undertook to train the S.S. in this “new method of killing,” and was aware that, by June 1942, the gas was being used for such a purpose. Id. at 95. The Prosecutor successfully argued that “knowingly to supply a commodity to a branch of the State which was using that commodity for the mass extermination of Allied civilian nationals was a war crime, and that the people who did it were war criminals for putting the means to commit the crime into the hands of those who actually carried it out.” Id. at 94. 
United States, Court of Appeals for the Second Circuit, Khulumani case, Separate Concurring Opinion of Judge Hall, 12 October 2007.
United States of America
In 2008, in the Khadr case, a Guantánamo Military Commission considered a Defence motion for Dismissal Due to Lack of Jurisdiction Under the MCA [Military Commissions Act (2006)] in Regard to Juvenile Crimes as a Child Soldier. In denying the Defence motion, the Commission firstly considered the relevant provisions related to juvenile jurisdiction contained in the MCA and found:
Reading the statutory provisions together, it is clear that Congress did not, either by implication or otherwise, limit the jurisdiction of a military commission so that persons of a certain age could not be tried thereby. 
United States, Guantánamo Military Commission, Khadr case, Ruling, 30 April 2008, § 7.
The Commission then considered the matter of whether international law prohibited the trial of juveniles for alleged violations of the law:
14. Both the defense and the prosecution cite the commission to various treaties and protocols and legal writings in an attempt to show that [the defendant’s] age, at the time of the offenses alleged, does or does not prohibit his trial by military commission on criminal charges. The defense relies, in great part, on the [2000] Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. …
16. The commission has reviewed the entire Optional Protocol. Nothing in the Protocol prohibits the trial of [the defendant] by this commission. The commission has also reviewed the entire General Comment No. 10: Children’s Rights in Juvenile Justice. While it does set a certain MACR [Minimum Age of Criminal Responsibility], it does not address the issue of MACR for “child soldiers.” Both the Optional Protocol and General Comment No. 10 focus on ways in which children may, should, could, or would be treated before, during, and after criminal prosecutions. Neither of them directly addresses the issue before this commission.
17. The commission finds that certain segments of the international community believe in and articulate various methods and standards which could be used when a person under the age of 16 (or 18 – the segments are not as one on the exact age limit to be used) is charged with a criminal offense – either in violation of the law of nations or in violation of the law of a nation. While these may be interesting as a matter of policy, they are not governing on this commission. To quote from the amicus brief filed by … on behalf of various persons and groups:
Although international treaty law does not consistently and unequivocally preclude the exercise of criminal jurisdiction over child soldiers by military tribunals, customary international law clearly recognizes that absent exceptional circumstances and rehabilitative intent, such prosecutions should not occur. (Paoletti at page 11.)
The MCA and the Manual for Military Commissions (MMC) give the Convening Authority the power to decide which cases should be referred to trial by military commission. The commission presumes, without deciding, that the Convening Authority considers the circumstances of each case and each accused before referring a case to trial. Whether or not being tried for alleged crimes is rehabilitative is not a question before this commission.
18. Having considered the motion, response, and reply, and the amicus briefs, the commission finds that neither customary international law nor international treaties binding upon the United States prohibit the trial of a person for alleged violations of the law of nations committed when he was 15 years of age. 
United States, Guantánamo Military Commission, Khadr case, Ruling, 30 April 2008, §§ 14 and 16–18.
United States of America
In 2008, in the Harman case, in which the appellant appealed the finding of a military court that had convicted her of conspiracy to maltreat detainees, dereliction of duty by wilfully failing to protect detainees from abuse, and maltreatment of detainees – charges that had arisen from a series of incidents that had occurred at the US Baghdad Central Confinement Facility at Abu Ghraib, Baghdad, Iraq, in 2003 – the US Army Court of Criminal Appeals upheld the finding of the lower court and its sentence of rank reduction, forfeiture of pay and allowances, confinement for six months and a bad-conduct discharge. The Court of Appeals stated:
Charge I alleges that appellant committed the offense of conspiracy in violation of Article 81, UCMJ. The single specification asserts that appellant “[d]id, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003, conspire with Staff Sergeant [IF], Sergeant [JD], Corporal [CG], Specialist [JS], Specialist [MA] and Private First Class [LE], to commit an offense under the Uniform Code of Military Justice, to wit: maltreatment of subordinates, and in order to effect the object of the conspiracy the said Specialist Harman posed for a ‘thumbs up’ photograph with said Corporal [CG] behind a pyramid of naked detainees.”
To obtain a conviction for conspiracy, the government must prove the following two elements beyond a reasonable doubt: “(1) That the accused entered into an agreement with one or more persons to commit an offense under the code; and (2) That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.” Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM, Part IV, para. 5b. For the first element, the government’s theory, apparently accepted by the panel, was that appellant’s conduct both in taking pictures of the maltreatment and posing in pictures depicting maltreatment demonstrates that she entered into a non-verbal agreement with the other guards to maltreat detainees. For the second element, the government’s theory was that posing in the “thumbs up” photograph was an overt act.
[W]hile appellant’s presence at the prison was mandatory, her misconduct was not. She did not have a duty to appear in a “thumbs up” picture with CPL CG behind the pyramid of naked detainees, to take pictures herself, or to engage in any other concerted misconduct. Her entering into a conspiracy and her participation in the specified overt act were voluntary
The circumstances show that she had the intent to commit the offense of conspiracy. We conclude that the evidence was legally and factually sufficient to support her conviction of Charge I and its Specification. 
United States, US Army Court of Criminal Appeals, Harman case, Judgment, 30 June 2008.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice held:
There is sufficient prima facie evidence of the [criminal] responsibility of … [the accused] for the alleged commission of the offences for which his extradition is requested, and that justify the preventive detention ordered against him [by the Government of Colombia].
From all the above, it can be concluded that the extradition request is valid with regards to the offences of extortive kidnapping, and seizure and diversion of aircraft. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, pp. 11–12.
[emphasis in original]
Yugoslavia, Federal Republic of
In the Ademi case in 2000, the Communal Court of Mitrovica in Kosovo (Federal Republic of Yugoslavia) convicted the accused, a member of the local security force of Albanian origin, for “violating the Rules of International Law during the war conflict against the civilian population” in joint action with members of the armed forces. 
Yugoslavia, Federal Republic of, Communal Court of Mitrovica, Ademi case, Judgment, 30 August 2000.
Yugoslavia, Federal Republic of
In the Trajković case before the District Court of Gnjilan in Kosovo (Federal Republic of Yugoslavia) in 2001, a Kosovo Serb and former chief of police, was convicted, inter alia, for having participated in crimes committed against the civilian population in 1999, acts which the District Court found had to be qualified as war crimes under Article 142 of the Penal Code of the Socialist Federal Republic of Yugoslavia, as well as crimes against humanity. The Court also found that the acts had been committed “in time of war”. 
Yugoslavia, Federal Republic of, District Court of Gnjilan, Trajković case, Judgment, 6 March 2001.
However, on appeal, the Supreme Court of Kosovo overruled this judgment and ordered that the case be returned to the same court for retrial. The Supreme Court found, inter alia, that:
The state of facts was erroneously established in relation to all charges as there is no direct or conclusive evidence that the accused acted personally or gave orders leading to the alleged crimes or that he should be held liable under command responsibility duties concerning the above-mentioned crimes … During the retrial, the court of first instance should therefore assess … the issue of the accused’s personal responsibility for participation in the crimes alleged. 
Yugoslavia, Federal Republic of, Supreme Court of Kosovo, Trajković case, Decision Act, 30 November 2001.
Yugoslavia, Federal Republic of
In a written opinion in the Trajković case before the District Court of Gnjilan in Kosovo (Federal Republic of Yugoslavia) in 2001, the International Prosecutor for the Office of the Public Prosecutor of Kosovo stated:
This Opinion has concluded that [the accused] was not properly found guilty of any of the crimes under individual liability (the direct giving of orders to commit the crimes, or committing them as a co-perpetrator, or under accomplice liability) … Individual responsibility subsumes command responsibility. Because of this “subsuming rule”, we must first evaluate whether individual responsibility might attach, as a finding that a defendant is individually responsible for a war crime or crime against humanity will preclude the need to analyse his culpability under command responsibility. The rule is stated in the statute and decisions of the ICTY … As to any particular criminal act found to be a war crime or crime against humanity sanctioned under international law, command responsibility can only attach where the accused cannot be found individually responsible for the crime. Therefore an individual responsibility analysis must precede and may preclude a command responsibility analysis. It is this Opinion that any liability for the war crimes enumerated by the Verdict must be through command responsibility, and not through individual responsibility. 
Yugoslavia, Federal Republic of, International Prosecutor for the Office of the Public Prosecutor of Kosovo, Trajković case, Opinion on Appeals of Convictions, 30 November 2001, Sections IV and IV(A).
Afghanistan
In 1998, at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome, the Afghan Vice-Minister for Foreign Affairs declared:
Since the second World War in the framework of the United Nations we have been witnessing an unprecedented expansion in the international protection of Human Rights. This expansion could be ascribed to an ever-increasing sharing of fundamental values and expectation among nations. Consequently the World community now acknowledges the need to protect the individual from different varieties of human depredations by creating an International Permanent Criminal Court, which should prosecute and punish those who are escaping national jurisdiction under different circumstances. 
Afghanistan, Statement by the Vice-Minister for Foreign Affairs at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 16 June 1998.
Australia
In 1994, in a report to UNESCO on measures to implement the 1954 Hague Convention for the Protection of Cultural Property, Australia noted that at the most elementary level of training provided for all members of the armed forces, it was emphasized that: “Individual officers and soldiers will be held accountable for any violations [of the rules of the LOAC].” 
Australia, Department of Foreign Affairs and Trade, Report to UNESCO on Measures to Implement the Convention for the Protection of Cultural Property in the Event of Armed Conflict and Associate Regulations, 13 July 1994, § 1(b).
Australia
In 2000, during a debate in the UN Security Council regarding the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, Australia stated:
Governments must also denounce – and denounce strongly – attacks against United Nations personnel and humanitarian workers and take all measures to bring perpetrators of violence to justice. Impunity, as so many of my colleagues have emphasized in this discussion, cannot be allowed.
The enforcement of international humanitarian law must also be strengthened in order to bring those responsible to justice and to send a clear message of the international community’s intolerance of this violence. 
Australia, Statement before the UN Security Council, UN Doc. S/PV.4100 (Resumption 1), 9 February 2000, pp. 6 and 7.
Austria
In 1991, during a debate in the Sixth Committee of the UN General Assembly on the environmental impact of the Gulf War, Austria stated that “there could be no doubt as to the illegality of the acts committed by Iraq, entailing … personal criminal liability of those responsible for those acts”. 
Austria, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/46/SR.19, 23 October 1991, § 5.
Canada
In the annual report on its crimes against humanity and war crimes program 2004–2005, Canada stated:
A person may be considered complicit if the person is aware of the commission of war crimes or crimes against humanity and contributes directly or indirectly to their occurrence. Membership in an organization responsible for committing the atrocities can be sufficient to establish complicity if the organization in question is one with a limited brutal purpose, such as a death squad. 
Canada, Eighth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2004–2005, p. 4.
Canada
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
Individuals who aid or abet or carry out a common purpose in the commission of an offence under the CAHWCA [2000 Crimes Against Humanity and War Crimes Act] can be prosecuted under the CAHWCA. In addition, sections 4(1.1) and 6(1.1) of the CAHWCA criminalize conspiring or attempting to commit, being an accessory after the fact in relation to, and counselling in relation to, the commission of a crime against humanity or war crime, including the underlying offence of torture.  
Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, § 177.
Chile
In 1998, at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome, the Chilean Under-Secretary of Justice declared that crimes such as genocide, war crimes, which he defined as crimes committed in international armed conflicts or conflicts of an internal character, and crimes against humanity should be included in the competence of the Court. 
Chile, Statement by the Under-Secretary of Justice at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 16 June 1998.
China
According to the Report on the Practice of China, which refers to a statement made in 1955 by a representative of the Chinese Ministry of Foreign Affairs, in 1954, China remitted 410 Japanese military personnel who had committed various crimes during the Japanese invasion of China and the Chinese war of liberation. The report notes that this clearly indicates that the Chinese Government does not make a distinction between international armed conflicts and internal armed conflicts, and that China “consistently holds that foreigners also shall take criminal responsibility for committing war crimes in internal armed conflicts”. 
Report on the Practice of China, 1997, Chapters 6.3 and 6.5, referring to Statement by the Ministry of Foreign Affairs on the issue of the “so-called withdrawal of Japanese nationals in China put forward by the Japanese government”, 16 August 1995, Documents on Foreign Affairs of the People’s Republic of China, World Knowledge Press, Beijing, Vol. 3, p. 338.
China
In 1983, during a debate in the Sixth Committee of the UN General Assembly on the ILC Draft Code of Offences against the Peace and Security of Mankind, China stated: “Such crimes could be committed by both individuals and States and the responsibility of either would vary only as to its character or extent.” 
China, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/38/SR.52, 23 November 1983, § 25.
Democratic Republic of the Congo
In 2008, a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states:
Constitutive elements of criminal responsibility
Traditionally, the constitutive elements of crimes are divided in two categories: actus reus and mens rea.
a. Actus reus
- It describes the prohibited conduct which is adopted by the accused. The actus reus depends also on the results caused, which establish the criminal nature of the conduct. Thus, throwing a stone is not a crime, unless it wounds or kills a human being. In certain circumstances, the omission of an act which a person was legally obliged to carry out may constitute the actus reus of a crime. For example, the commander of a camp who continues to unlawfully detain civilians, while he has the power to release them, may be convicted for crimes resulting from the failure to exercise such power.
- The actus reus describes also the conditions required for transforming a specific conduct into a crime. Thus, for war crimes, the fact that a specific crime (murder, rape, etc.) was perpetrated in the context of an armed conflict may be an element constitutive of the actus reus of the war crime.
b. Mens rea
Its elements refer to the state of mind of a person involved in the actus reus of a crime. In principle, criminal law does not punish involuntary acts. It makes a clear distinction between the conduct which unconsciously or involuntarily causes harm and deliberate acts committed with a criminal intention. Thus, the elements of the mens rea of a crime consist of the intention which motivates the suspect at the precise moment when the act is carried out.
Article 30(1) of the … [1998 ICC] Statute requires that the elements of the actus reus of a crime be necessarily committed “with intent and knowledge”. This definition of the necessary psychological state clearly establishes that, unless expressly provided otherwise, the crimes within the jurisdiction of the ICC must be perpetrated with the highest degree of intent. Inferior criminal states of mind, such as criminal negligence, are insufficient. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 8–9.
Regarding modes of criminal responsibility, the training manual states:
We make a clear distinction between a first level [of responsibility composed] of the direct perpetrators of a crime, and other levels of responsibility [composed of] persons who, despite their distance and indirect link, have a participation in the commission of a crime …
The various levels of responsibility:
a. The first category is that of direct perpetrators of a crime: a person who attacks a victim and physically commits a crime against the latter. This group includes also the immediate superiors of direct perpetrators if they are directly implicated in the preparation, order, incitation or commission.
b. The second category comprises intermediate perpetrators … including distant perpetrators who … participate with knowledge about the commission of the crimes by the direct perpetrators.
c. The third category is composed of military, police and political leaders, who use their power to [initiate] the crimes committed by the direct perpetrators. They are the ones who conceive [the crime] …
d. The last group is of persons likely to be implicated in the operational chain of serious international crimes, [which is] composed of individuals who, in the exercise of their usual [legal] powers, involuntarily form an unavoidable [link] of the criminal chain. The perpetrators use persons as instruments.
The modes of “knowledge” :
One of the domains in which it is very difficult to [gather] evidence concerns the “knowledge” by a suspect or perpetrator of a crime before its commission. Article 30 of the … [1998 ICC] Statute requires evidence beyond reasonable doubt regarding the knowledge and intent of a person accused of a crime. It defines knowledge in paragraph 3 of that article: “knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
The modes of criminal participation:
… There are many ways in which a crime can be perpetrated. When a crime involves several perpetrators, each one may have participated in a different way. This applies notably to international crimes, which are not only caused by those who physically perpetrate them, but also by those who order, incite and support them.
The participation of a person in the commission of a crime might vary according to his or her position and to the nature of the crime.
a. Premeditation
The premeditation of a crime means that a person or several persons conceived the perpetration of the crime, during both its preparation and execution, and that the crime was indeed committed within the outlined framework …
Such premeditation can take different forms according to the level of the various perpetrators. If it concerns a group of direct perpetrators who, for instance, attack a city where they commit several crimes, the premeditation includes activities which preceded the attack, when they discussed and agreed on the manner in which they would attack the city.
b. Incitement
This mode includes all words, acts and gestures presented in public in view of driving another person to commit a criminal act … According to the case-law of the ICTY, the mens rea of incitement presupposes that the suspect had the intention to provoke the commission of a crime or was perfectly aware that the commission of a crime would be a probable consequence of his or her acts.
Incitement may be carried out by omission … In this case, it must be proven that there is a relation of cause and effect between the incitement and the effective commission of the crime.
c. Order
Order as a mode of participation in a crime presupposes the existence of a relation of subordination between the person who gives the order and the person who effectively commits the crime. In this case, mens rea consists of the will of the person giving the order to see such crime being committed, or the knowledge by that person of the high probability that the commission of such crime would result from his or her orders.
The order does not need to be written, nor even verbal …
d. Conspiracy or Joint Criminal Enterprise (JCE)
One of the most remarkable innovations of international criminal law is the … theory of the “joint criminal enterprise” as a mode of criminal participation. It characterises the criminal conduct of high officials which are not directly linked to the crimes committed or their victims. It was conceived by the ICTY … [I]t concerns the commission of acts by a group of persons who are all engaged in the implementation of a collective criminal plan.
This mode of responsibility means that, under certain circumstances, the members of a joint criminal enterprise are not only criminally responsible for the crime which was really intended, but also … for other crimes which result, in a predictable manner, from the joint criminal enterprise. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 9–13.
Ethiopia
In 1992, the Office of the Special Public Prosecutor (SPO) was established in Ethiopia after the fall of the regime of Colonel Mengistu Haile Mariam in 1991. In a letter to the Assistant Secretary-General for Human Rights, Ethiopia explained that the SPO had “the power to conduct investigations and institute proceedings against those it suspects of committing crimes and/or abusing their positions of authority in the former [Mengistu] regime”. 
Ethiopia, Transitional government, Letter dated 28 January 1994 to the Assistant UN Secretary-General for Human Rights, UN Doc. E/CN.4/1994/103, 3 February 1994, § 3.
Ethiopia
In 1994, in a statement before the UN Commission on Human Rights, the Chief Special Prosecutor of the Ethiopian Transitional Government stated that the Office of the Special Public Prosecutor (SPO) was established “to compile a list of all the abuses committed by the previous regime and to bring those responsible to justice”.  
Ethiopia, Transitional Government, Statement by the Chief Special Prosecutor before the UN Commission on Human Rights, 17 February 1994, UN Doc. E/CN.4/1994/SR.28, 22 January 1996, § 2.
Ethiopia
According to a statement made in 1997 by Ethiopia’s Office of the Special Public Prosecutor (SPO), which is in charge of prosecuting persons who allegedly committed crimes of genocide, crimes against humanity and war crimes between 1974 and 1991, since the SPO’s establishment in 1992 by Proclamation 22/1992 of the transitional government of Ethiopia, a total of 5,198 persons had been charged by 1997, 54 of them with war crimes and most of the others with genocide, the defendants being classified into three major groups: policy- and decision-makers; field commanders; and the perpetrators of the crimes. The charges were based on Ethiopia’s Penal Code. 
Ethiopia, Office of the Special Public Prosecutor, Statement of the Chief Special Public Prosecutor, Addis Ababa, 13 February 1997.
Finland
In 2004, in a report to Parliament on Finland’s human rights policy, Finland stated:
The principle of individual criminal responsibility is particularly important in situations where it is not possible to implement state responsibility. The measures to put an end to impunity for serious international crimes have therefore become increasingly relevant. 
Finland, Government report to Parliament on the human rights policy of Finland 2004, Helsinki: Publications of Ministry of Foreign Affairs, 2004, p. 83.
[T]here is still a lack of accountability for violations of international law committed against children in armed conflict. The fight against impunity and assuring the victims’ access to justice are crucial. … Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity. 
Finland, Statement by the permanent representative of Sweden before the UN Security Council during an open debate on children and armed conflict, made on behalf of Finland, Iceland, Norway and Sweden, 18 June 2015.
France
In 1993, the French Ministers of State and of Foreign Affairs wrote a letter to the Chairman of the Committee of French Jurists entrusted to study the establishment of an international criminal tribunal for the former Yugoslavia, stating:
Unfortunately there is no longer any doubt that particularly serious crimes are being committed in the territory of the former Yugoslavia that constitute war crimes, crimes against humanity or serious violations of certain international conventions.
Such actions cannot go unpunished, and the absence of real penalties, in addition to being an affront to public conscience, could encourage the perpetrators of these crimes to pursue their regrettable course of action. 
France, Minister of State and Minister of Foreign Affairs, Letter dated 16 January 1993 to the Procurator-General of the Court of Cassation and Chairman of the Committee of French Jurists, annexed to Letter dated 10 February 1993 to the UN Secretary-General, UN Doc. S/25266, 10 February 1993, p. 52.
France
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, France stated:
In adopting resolution 827 (1993), the Security Council has just established an International Tribunal that will prosecute, judge and punish people from any community who have committed or continue to commit crimes in the territory of the former Yugoslavia …
The expression “laws or customs of war” used in Article 3 of the [1993 ICTY Statute] covers specifically, in the opinion of France, all the obligations that flow from the humanitarian law agreements in force on the territory of the former Yugoslavia at the time when the offences were committed. 
France, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, pp. 10–11.
France
In 1993, during a debate in the Sixth Committee of the UN General Assembly on the report of the International Law Commission, France referred to the draft statute for an international criminal tribunal for the former Yugoslavia and stated:
Although it was true that barbarity had always existed, it was no less true that impunity for the guilty was no longer acceptable. Therefore, the establishment of an international criminal jurisdiction, although it would not fully satisfy those with the most exacting consciences, was a step forward in achieving respect for the rule of law and a better lot for the victims of the conflicts. 
France, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/48/SR.18, 26 October 1993, § 35.
France
In 2008, the Minister of Defence of France stated: “The individual criminal responsibility of members of private military companies who have violated international humanitarian law could be incurred before French courts.” 
France, Response from the Minister of Defence to parliamentary written question No. 25422, Journal officiel de la République française, 12 August 2008, p. 6934.
Germany
In 1993, during a debate in the Sixth Committee of the UN General Assembly on the question of responsibility for attacks on UN and associated personnel and measures to ensure that those responsible for such attacks were brought to justice, Germany, referring to a draft of the Convention on the Safety of UN Personnel which had been introduced by New Zealand, stated:
[This draft convention] also established the personal responsibility of the perpetrators by making such acts crimes punishable under the national laws of States parties. That was especially important when the United Nations was operating in areas of the world where there was no effective authority to guarantee that the perpetrators were actually punished. The draft convention would fill a vacuum. 
Germany, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/48/SR.16, 21 October 1993, § 65.
Germany
According to a representative of the German Central Office for the Investigation of National-Socialist Atrocities at Ludwigsburg (Zentrale Stelle zur Aufklärung nationalsozialistischer Gewaltverbrechen), established by the judicial administrations of the German States in 1958, by September 1999, Germany had investigated the cases against more than 100,000 accused and suspected persons for crimes committed during the Nazi regime. In all, 7,225 of the proceedings were handed over to the public prosecution and about 6,500 individuals were convicted. The representative stated: “It is important that [even the elderly persons accused of having committed such crimes] must be held responsible for their deeds.” 
Willi Dressen, “Eine Behörde gegen das Vergessen”, Die Welt, 2 September 1999.
Germany
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “German nationals in private security companies and in the foreign legion operating abroad”, Germany’s Federal Government wrote:
a) How does the Federal Government plan to ensure that … private security companies, due to their definition and status as “non-combatants”, do not consider themselves as not being bound by international law and undermine international humanitarian law?
… Employees of private security companies who are not combatants are bound by international humanitarian law and can be prosecuted by domestic courts or the International Criminal Court if they have committed war crimes in armed conflict. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Inge Höger, Jan van Aken, Christine Buchholz, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/4012, 1 November 2010, p. 9.
Hungary
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, Hungary noted:
This is the first time that the United Nations established an international criminal jurisdiction to prosecute persons who commit grave violations of international humanitarian law … We note … the importance of the fact that the jurisdiction of the [ICTY] covers the whole range of international humanitarian law and the entire duration of the conflict throughout the territory of former Yugoslavia. 
Hungary, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, p. 20.
Hungary
In 1996, during a debate in the Council of Europe Parliamentary Assembly on the report of the Committee on Migration, Refugees and Demography on refugees, displaced persons, and reconstruction in certain countries in the former Yugoslavia, Hungary declared:
Those who committed war crimes or crimes against humankind should be prosecuted and held responsible for their acts before an international court, namely the International Criminal Tribunal for the Former Yugoslavia. 
Hungary, Statement before the Council of Europe Parliamentary Assembly, Ordinary Session (First part), 24 January 1996, Official Report of Debates, Vol. I, p. 181.
Indonesia
In 1996, during a debate in the UN Security Council on the report of the UN Secretary-General on the situation in Burundi, Indonesia stated:
We would like to recall that all persons who committed or authorized the commission of serious violations of international humanitarian law are individually responsible for such violations and should be held accountable. Those responsible for crimes against humanity and, in this case, their fellow countrymen should be brought to justice.  
Indonesia, Statement before the UN Security Council, UN Doc. S/PV.3692, 28 August 1996, p. 21.
Israel
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the International Law Commission’s work on the Nuremberg Principles, Israel declared that the principles in question “had become a constituent part not only of universal international law, but also of the law of the United Nations”. 
Israel, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/SR.236, 9 November 1950, § 55.
Jordan
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Jordan stated:
5.202 The policy and practice of displacement resulting from the construction of the wall, considered in its historical context and in the light of consistent patterns of expropriation, destruction of agricultural land, orchards and olive groves, designate [sic] of Palestinian land as “state land”, refusal of return of refugees, promotion of and assistance to non-indigenous settlers, allow an inference of permanent forcible transfers attributable to Israel. Such transfers are contrary to any exception permitted under the Fourth Geneva Convention.
5.203 Moreover, deportation and transfer incur individual criminal responsibility in international law. 
Jordan, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, §§ 5.202–5.203.
Malaysia
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Malaysia stated:
To the extent that the construction and maintenance of the Wall in Occupied Palestinian Territory constitute grave breaches of the Fourth Geneva Convention, individual criminal responsibility is involved and all States parties to the Convention, including Israel, are under the obligation to prosecute the individuals responsible for these breaches. 
Malaysia, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, p. 56.
Netherlands
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the International Law Commission’s work on the Nuremberg Principles, and in reply to a statement by the United Kingdom “that the concept of the direct responsibility of the individual under international law without the interposition of the national State was ‘convenient and picturesque’ but unscientific”, the Netherlands emphasized that it was apparent from the judgment of the 1945 International Military Tribunal for Germany that “there were rules of international law which applied directly to individuals, without passing through the intermediary of national law, and that some obligations of international law transcended the obligations imposed by the national administration”. 
Netherlands, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/SR.236, 9 November 1950, § 24.
New Zealand
In 2000, during a debate in the UN Security Council regarding the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, and specifically with regard to the alleged shooting down of two UN aircraft in Angola in December 1998 and January 1999 respectively, New Zealand stated:
The premeditated destruction of those aircraft would be one of the most flagrant crimes against this Organization and its personnel ever recorded … It is essential that the perpetrators be brought to justice, however long it takes. There can be no impunity for crimes of such nature. 
New Zealand, Statement before the UN Security Council, UN Doc. S/PV.4100 (Resumption 1), 9 February 2000, p. 9.
During the same debate, New Zealand stated, with regard to the “inclusion of deliberate attacks on personnel involved in a humanitarian situation or peacekeeping mission in the [1998 ICC Statute] as a war crime over which the International Criminal Court will have jurisdiction”: “We hope that the [International Criminal] Court … will contribute towards ending the impunity enjoyed by perpetrators of such attacks in the past.” 
New Zealand, Statement before the UN Security Council, UN Doc. S/PV.4100 (Resumption 1), 9 February 2000, p. 9.
Norway
In 2000, during a debate in the UN Security Council regarding the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, Norway stated: “States need to hold … non-State actors accountable for their attacks on humanitarian workers operating in territory under their control.” 
Norway, Statement before the UN Security Council, UN Doc. S/PV.4100 (Resumption 1), 9 February 2000, p. 10.
[T]here is still a lack of accountability for violations of international law committed against children in armed conflict. The fight against impunity and assuring the victims’ access to justice are crucial. … Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity. 
Norway, Statement by the permanent representative of Sweden before the UN Security Council during an open debate on children and armed conflict, made on behalf of Finland, Iceland, Norway and Sweden, 18 June 2015.
Pakistan
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the International Law Commission’s work on the Nuremberg Principles, Pakistan stated:
The Nürnberg principles, involving as they did the grave problems of war and peace, were of great importance and deep significance to international law. They proclaimed that … those who violated the laws [and] customs of war or committed inhuman acts against civilian populations thereby rendered themselves guilty of international crimes and liable to judgment and punishment. 
Pakistan, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/SR.236, 9 November 1950, § 38.
Russian Federation
In 2011, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, the permanent representative of the Russian Federation stated: “All parties to an armed conflict … must … bear the … obligations under international humanitarian law. Those guilty of violations, State and non-State actors alike[,] must not evade responsibility for crimes committed.” 
Russian Federation, Statement by the permanent representative of the Russian Federation during a UN Security Council meeting on the protection of civilians in armed conflict, 9 November 2011, pp. 23–24.
Rwanda
In 2001, in a statement before the UN Commission on Human Rights, the Rwandan Minister of Justice stated that his government “was also committed to doing its utmost to prosecute and sentence those responsible for the genocide and other serious violations of human rights and international humanitarian law”. 
Rwanda, Statement by the Minister of Justice before the UN Commission on Human Rights, 30 March 2001, UN Doc. E/CN.4/2001/SR.25, 6 May 2002, § 73.
South Africa
In 1996, during a debate in the UN Security Council on the report of the UN Secretary-General on the situation in Burundi, South Africa stated:
The international community can no longer allow acts of unbridled violence to continue with impunity. Those who commit serious violations of international humanitarian law should be made to realize that they are individually responsible for such violations and will be held accountable. 
South Africa, Statement before the UN Security Council, UN Doc. S/PV.3692, 28 August 1996, p. 12.
Spain
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
The framework guaranteeing that members of the armed forces will conduct themselves in accordance with international humanitarian law is constituted by … article 56 [of the Royal Ordinances for the Armed Forces (2009)] on Serious Criminal Liability for Crimes against International Humanitarian Law.
Members of the armed forces who contravene the aforementioned principles [of IHL] will be punished in accordance with the Military Criminal Code, adopted through Basic Act 13/1985 and amended by Basic Act 3/2002. The Military Criminal Code also gives precedence to “crimes against the laws and customs of war”, described in Title Two of … the Book of Crimes. Articles 69 to 78 set out the penalties for violating the principles of international humanitarian law, in order of the seriousness of the acts committed. 
Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 5 May 2010, Section 2.
Sri Lanka
In 2008, in its initial report to the Committee on the Rights of the Child under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Sri Lanka stated:
93. … [T]he IGP [Inspector General of Police] [has been requested] to assign special police officers to investigate children in “custody” who have been recruited or abducted for use in armed conflict. …
114. … A new regulation incorporating child friendly procedures for … child surrendees has been drafted.
115. The current procedure which applies to “surrendees” is as follows:
(e) The “surrendee” may be investigated after three months of his being assigned to a centre, with the prior written approval of the Secretary to the Ministry of Defence for his involvement in the commission of an offence set out in paragraph 2 of the Regulation and where necessary, tried for such offence. Where a surrendee is found guilty of such offence the court may take into consideration the fact of his surrender in determining the sentence to be imposed on him. The court may[,] where appropriate, order that such surrendee be subject to a further period of rehabilitation at a centre.  
Sri Lanka, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 15 February 2010, UN Doc. CRC/C/OPAC/LKA/1, submitted 16 June 2008, §§ 93, 114 and 115(e).
[T]here is still a lack of accountability for violations of international law committed against children in armed conflict. The fight against impunity and assuring the victims’ access to justice are crucial. … Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity. 
Sweden, Statement by the permanent representative of Sweden before the UN Security Council during an open debate on children and armed conflict, made on behalf of Finland, Iceland, Norway and Sweden, 18 June 2015.
Switzerland
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
5.5.2 Individual responsibility under international criminal law
5.5.2.1 Introduction and legal sources
Certain violations of international law result in individual criminal responsibility directly based on international law. The legal sources of relevant international criminal law are certain international agreements such as the [1949] Geneva Conventions and the UN Convention on Torture of 1984. Customary international law is also of great importance. … The crimes against international law named in the [1998] Rome Statute of the International Criminal Court reflect customary international law, as is broadly recognised.
5.5.2.2 Acts constituting an offence
Acts which constitute an offence that are of potential relevance for private security companies operating in conflict situations include war crimes and crimes against humanity as well as individual acts such as torture and the forced disappearance of individuals. 
Switzerland, Report by the Swiss Federal Council on Private Military and Security Companies, 2 December 2005, Section 5.5.2, p. 49.
[footnotes in original omitted; emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 1990, during a debate in the Sixth Committee of the UN General Assembly, the United Kingdom stated that:
Recent events in the Persian Gulf demonstrated all too clearly the relevance of the topic of the draft Code of crimes against the peace and security of mankind. The catalogue of the international legal obligations which had been violated was endless. It must be clear that individuals were personally responsible for crimes of that nature, since the responsibility of the State, if there was such responsibility, was not in itself a sufficient response. 
United Kingdom, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/45/SR.35, 8 November 1990, § 27.
United Kingdom of Great Britain and Northern Ireland
In 1990, during a debate in the UN Security Council concerning the application of the 1949 Geneva Convention IV in Kuwait following its occupation by Iraq, the UK representative stated:
I should also recall the terms of paragraph 13 of resolution 670 (1990), under which individuals are held individually responsible for grave breaches of the Geneva Convention. We should also hold personally responsible those involved in violations of the laws of armed conflict, including the prohibition against initiating the use of chemical or biological weapons contrary to the [1925 Gas Protocol], to which Iraq is a party. 
United Kingdom, Statement before the UN Security Council, UN Doc., S/PV.2963, 29 November 1990, p. 82.
United Kingdom of Great Britain and Northern Ireland
On 21 January 1991, in the context of the Gulf War, the UK Minister of Foreign Affairs summoned the Iraqi ambassador to discuss Iraq’s obligations under international law. According to a statement by a spokesperson of the Foreign and Commonwealth Office (FCO) following the meeting, the UK Minister had “also reminded the Iraqi Ambassador of the personal liability of those individuals who broke the Conventions … He again reminded the Ambassador of the personal liability of those who authorised [the] use [of chemical and biological weapons]”. 
United Kingdom, Statement by a Foreign and Commonwealth Office spokesperson, 21 January 1991, reprinted in BYIL, Vol. 62, 1991, p. 680.
United Kingdom of Great Britain and Northern Ireland
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United Kingdom, with regard to the treatment of British POWs by Iraq, stated: “The Iraqi Ambassador was reminded of the responsibility of … individual Iraqis for any grave breach of the [1949 Geneva] Conventions.” 
United Kingdom, Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22117, 21 January 1991, p. 1.
United Kingdom of Great Britain and Northern Ireland
In 1991, in a written reply to a question in the House of Commons, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated: “We have consistently stated that individuals bear personal responsibility for crimes under international law. This position is reflected in Security Council resolution 674.” 
United Kingdom, House of Commons, Reply to a written question by Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 28 February 1991, Vol. 186, Written Answers, col. 583.
United Kingdom of Great Britain and Northern Ireland
In 1991, during a debate in the House of Lords on the subject of peace and security in the Middle East, a UK government spokesperson stated:
We have made it clear that anyone who breaks the provisions of the Geneva Conventions may be held liable, and that remains the case. That will not be a decision for the [United Kingdom] alone. Machinery already exists under the [Geneva Conventions Act as amended (1957)] for prosecuting grave breaches. The Kuwaiti Government intends to establish a commission to catalogue war crimes, which we welcome. 
United Kingdom, House of Lords, Statement by a government spokesperson, Hansard, 6 March 1991, Vol. 526, cols. 1484–1485.
United Kingdom of Great Britain and Northern Ireland
In 1991, during a debate in the House of Commons on the subject of peace and security in the Middle East, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated:
Anyone who breaks the provisions of the Geneva conventions may be held liable. Thus, individual Iraqis now bear personal responsibility for breaches of them. That position was reaffirmed in Security Council resolutions 670 and 674 … Machinery already exists under [the Geneva Conventions Act as amended (1957)] for prosecuting grave breaches of them. 
United Kingdom, House of Commons, Statement by the Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 28 March 1991, Vol. 188, col. 1100.
United Kingdom of Great Britain and Northern Ireland
In 1993, during a debate in the UN Security Council on the establishment of the ICTY, the United Kingdom, with regard to “continued reports of massive breaches of international humanitarian law and human rights in Bosnia”, declared:
The perpetrators must be called to account, whoever is responsible, throughout the territory of the former Yugoslavia. Those who have perpetrated these shocking breaches of international humanitarian law should be left in no doubt that they will be held individually responsible for their actions. 
United Kingdom, Statement before the UN Security Council, UN Doc. S/PV.3175, 22 February 1993, p. 14.
United Kingdom of Great Britain and Northern Ireland
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, the United Kingdom stated:
It is essential that those who commit [violations of IHL in the former Yugoslavia] be in no doubt that they will be held individually responsible. It is essential that these atrocities be investigated and the perpetrators called to account, whoever and wherever they may be … Articles 2 to 5 of the draft [1993 ICTY] statute describe the crimes within the jurisdiction of the Tribunal. The Statute does not, of course, create new law, but reflects existing international law in this field. In this connection, it would be our view that the reference to the laws or customs of war in Article 3 is broad enough to include applicable international conventions and that Article 5 covers acts committed in time of armed conflict. 
United Kingdom, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, p. 19.
United Kingdom of Great Britain and Northern Ireland
In 1994, during a debate in the UN Security Council on acts committed in Rwanda, the United Kingdom stated:
[Resolution 935] of the UN Security Council sends a clear message to those responsible for grave violations of international humanitarian law, or acts of genocide, that they will be held individually responsible for those acts. The international community is determined that they be brought to justice; it is our duty to ensure that this is done. 
United Kingdom, Statement before the UN Security Council, UN Doc. S/PV.3400, 1 July 1994, p. 8.
United Kingdom of Great Britain and Northern Ireland
In 1994, during a debate in the UN Security Council, the United Kingdom reiterated that the establishment of the International Criminal Tribunal for Rwanda “is a signal of the international community’s determination that offenders must be brought to justice” and that “it is also a matter of the greatest importance to the British Government that the perpetrators of the genocide be brought to justice”.  
United Kingdom, Statement before the UN Security Council, UN Doc. S/PV.3453, 8 November 1994, p. 6; see also Statement before the UN Security Council, UN Doc. S/PV.3605, 12 December 1995, p. 5.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a written reply to a question in the House of Lords, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
United Nations peacekeeping operations and their personnel are accountable, through the commander of the operation in the field, the Department of Peace-Keeping Operations at UN Headquarters and the UN Secretary-General, to the Security Council.
UN peacekeeping personnel are obliged to act in accordance with international humanitarian law and may be subject to prosecution for any breaches which they commit. 
United Kingdom, House of Lords, Written answer by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 10 March 2003, Vol. 645, Written Answers, col. WA143.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a UN Security Council debate, the UK Foreign Secretary stated: “The tribunals for the former Yugoslavia and Rwanda have broken new ground in international law. They have shown that no one – no head of Government or State – is above the law.” 
United Kingdom, Statement before the UN Security Council, UN Doc. S/PV.4833, 24 September 2003, p. 23.
United States of America
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated:
The Government of the United States reminds the Government of Iraq that under International Law, violations of the Geneva Conventions, the Geneva [Gas] Protocol of 1925, or related International Laws of armed conflict are war crimes, and individuals guilty of such violations may be subject to prosecution at any time, without any statute of limitations. This includes members of the Iraqi armed forces and civilian government officials. 
United States, Department of State, Diplomatic note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, Annex I, p. 2.
In another such diplomatic note a few days later, the United States reiterated that “Iraqi individuals who are guilty of … war crimes … are personally liable and subject to prosecution at any time.” 
United States, Department of State, Diplomatic note to Iraq, Washington, 21 January 1991, annexed to Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991, p. 4.
United States of America
In 1991, during a debate in the Sixth Committee of the UN General Assembly on the environmental impact of the Gulf War and the environmental damage caused, the United States maintained that “existing international law not only prohibited the type of acts committed by Iraq, but also provided important remedies to address and deter such acts, in particular with respect to personal criminal liability”. 
United States, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/46/SR.18, 22 October 1991, § 39.
United States of America
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, the United States stated:
Truth is the cornerstone of the rule of law, and it will point towards individuals, not peoples, as perpetrators of war crimes … And to those who committed [violations of IHL in the former Yugoslavia], we have a clear message: war criminals will be prosecuted and justice will be rendered.
The crimes being committed … are not just isolated acts of drunken militiamen, but often are the systematic and orchestrated crimes of Government officials, military commanders, and disciplined artillerymen and foot soldiers. The men and women behind these crimes are individually responsible for the crimes of those they purport to control; the fact that their power is often self-proclaimed does not lessen their culpability.
It is understood that the “laws or customs of war” referred to in Article 3 [of the 1993 ICTY Statute] include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions.
With respect to paragraph 1 of Article 7, it is our understanding that individual liability arises in the case of a conspiracy to commit a crime referred to in Articles 2 through 5. 
United States, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, pp. 13–16.
United States of America
In 1995, in its amicus curiae brief presented to the ICTY in the Tadić case on the issue of the Tribunal’s jurisdiction, the United States stated:
We believe that the “grave breaches” provisions of Article 2 of the [1993 ICTY] Statute apply to armed conflicts of a non-international character as well as those of an international character …
Insofar as Common Article 3 [of the 1949 Geneva Conventions] prohibits certain acts with respect to “[p]ersons taking no active part in hostilities” in cases of armed conflict not of an international character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons as persons protected by the Conventions …
… Article 3 of the [1993 ICTY] Statute authorizes the prosecution of “persons violating the laws or customs of war. Such violations shall include, but not be limited to …” a series of specific acts that would constitute such violations. This is only an exemplary and not an exhaustive list, and the language of Article 3 is otherwise broad enough to cover all relevant violations of the laws or customs of war, whether applicable in international or non-international armed conflict. 
United States, Amicus Curiae brief presented to the ICTY, Tadić case, Motion Hearing, 25 July 1995, pp. 35–37.
United States of America
The 1998 version of the US Department of Defense Directive on the Law of War Program stated: “All reportable incidents committed by or against U.S. or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.” A “reportable incident” is defined as “a possible, suspected, or alleged violation of the law of war”. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Sections 3.2 and 4.3.
United States of America
In 2003, the Permanent Representatives of the United States and the United Kingdom to the United Nations wrote in a letter to the President of the UN Security Council:
The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq, including by … promoting accountability for crimes and atrocities committed by the previous Iraqi regime. 
United States, Letter by the Permanent Representatives of the United States and the United Kingdom to the United Nations to the President of the UN Security Council, UN Doc. S/2003/538, 8 May 2003.
Yugoslavia, Socialist Federal Republic of
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the International Law Commission’s work on the Nuremberg Principles, the Socialist Federal Republic of Yugoslavia stated: “All civilized nations considered that the principles recognized in the Charter of the Nürnberg Tribunal were principles of positive international law which all States should respect.” 
Yugoslavia, Socialist Federal Republic of, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/SR.234, 6 November 1950, § 7.
Yugoslavia, Socialist Federal Republic of
In Order No. 985-1/91 issued in 1991, the Chief of General Staff of the Yugoslav People’s Army stated: “War crimes and other grave breaches of norms of law on warfare are serious criminal offences and call for criminal liability of all perpetrators.” 
Yugoslavia, Socialist Federal Republic of, Chief of General Staff of the Yugoslav People’s Army, Legal Department, Order No. 985-1/91, 3 October 1991, § 2.
UN Security Council
In a resolution adopted in 1980 on the territories occupied by Israel, the UN Security Council:
Reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War to the Arab territories occupied by Israel since 1967, including Jerusalem,
Deeply concerned that the Jewish settlers in the occupied Arab territories are allowed to carry arms, thus enabling them to perpetrate crimes against the civilian Arab population,
1. Condemns the assassination attempts against the Mayors of Nablus, Ramallah and Al Bireh and calls for the immediate apprehension and prosecution of the perpetrators of these crimes. 
UN Security Council, Res. 471, 5 June 1980, preamble and § 1, voting record: 14-0-1.
UN Security Council
In a resolution adopted in 1990 in the context of the Iraqi occupation of Kuwait, the UN Security Council stated:
The Fourth Geneva Convention applies to Kuwait and … as a High Contracting Party to the Convention Iraq is bound to comply fully with all its terms and, in particular, is liable under the Convention in respect of the grave breaches committed by it, as are individuals who commit … grave breaches.  
UN Security Council, Res. 670, 25 September 1990, § 13, voting record: 14-0-1.
UN Security Council
In a resolution adopted in 1992 on violations of humanitarian law in the territory of the former Yugoslavia and in Bosnia and Herzegovina, the UN Security Council reaffirmed that “persons who commit … grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches”. 
UN Security Council, Res. 771, 13 August 1992, § 1, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1992 establishing the Commission of Experts to examine and analyse evidence of grave breaches of the 1949 Geneva Conventions and other violations of IHL in the former Yugoslavia, the UN Security Council recalled that “persons who commit … grave breaches of the Conventions are individually responsible in respect of such breaches”. 
UN Security Council, Res. 780, 6 October 1992, preamble voting record: 15-0-0; see also Res. 764, 13 July 1992, § 10, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1992 on Somalia, the UN Security Council strongly condemned “all violations of international humanitarian law occurring in Somalia, including in particular the deliberate impeding of the delivery of food and medical supplies essential for the survival of the civilian population” and affirmed that “those who commit … such acts will be held individually responsible in respect of such acts”. 
UN Security Council, Res. 794, 3 December 1992, § 5, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1993 on the establishment of the ICTY, the UN Security Council recalled that “persons who commit … grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches” and expressed itself “determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for [violations of international humanitarian law]”. 
UN Security Council, Res. 808, 22 February 1993, preamble, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1993 on Somalia, the UN Security Council:
Reiterates its demand that all Somali parties, including movements and factions, immediately cease and desist from all breaches of international humanitarian law and reaffirms that those responsible for such acts be held individually accountable. 
UN Security Council, Res. 814, 26 March 1993, § 13, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1993 with respect to the former Yugoslavia, the UN Security Council reaffirmed that “those who commit or have committed [massive, organized and systematic detention and rape of women] will be held individually responsible in respect of such acts”. 
UN Security Council, Res. 820, 17 April 1993, § 6, voting record: 13-0-2.
UN Security Council
By Resolution 827 of May 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) as an ad hoc international tribunal “for the sole purpose of prosecuting the persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia”. To the same end, it decided to adopt the ICTY Statute. 
UN Security Council, Res. 827, 25 May 1993, § 2, voting record: 15-0-0.
UN Security Council
In a resolution on Bosnia and Herzegovina adopted in 1993, the UN Security Council recalled “the principle of individual responsibility for the perpetration of war crimes and other violations of international humanitarian law and its decision in resolution 827 (1993) to establish an International Tribunal”. 
UN Security Council, Res. 859, 24 August 1993, § 7, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1994 with respect to the former Yugoslavia, the UN Security Council reiterated that “any persons committing violations of international humanitarian law will be held individually responsible”. 
UN Security Council, Res. 913, 22 April 1994, preamble, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1994 on Rwanda, the UN Security Council recalled a statement by its President in which it “inter alia, condemned all breaches of international humanitarian law in Rwanda, particularly those perpetrated against the civilian population and recalled that persons who instigate or participate in such acts are individually responsible”. The Security Council also recalled that “all persons who commit or authorize the commission of serious violations of international humanitarian law are individually responsible for those violations and should be brought to justice”. 
UN Security Council, Res. 935, 1 July 1994, preamble, voting record: 15-0-0.
UN Security Council
By Resolution 955 of November 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) as an ad hoc tribunal
for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.
To this end, the Security Council decided to adopt the ICTR Statute, annexed to the resolution. 
UN Security Council, Res. 955, 8 November 1994, § 1, voting record: 13-1-1.
UN Security Council
In a resolution adopted in 1995 on the conflict in the former Yugoslavia, the UN Security Council reiterated that “all those who commit violations of international humanitarian law will be held individually responsible in respect of such acts”. 
UN Security Council, Res. 1009, 10 August 1995, § 4, voting record: 15-0-0; see also Res. 1010, 10 August 1995, § 3, voting record: 15-0-0.
UN Security Council
By Resolution 1012 of 1995, the UN Security Council established the International Commission of Inquiry in Burundi, inter alia, to recommend measures to bring to justice persons responsible for the assassination of the President of Burundi, the massacres and other related serious acts of violence which followed, to prevent any repetition of deeds similar to those investigated by the commission and, in general, to eradicate impunity. The Security Council recalled that “all persons who commit or authorize the commission of serious violations of international humanitarian law are individually responsible for these violations and should be held accountable”. 
UN Security Council, Res. 1012, 28 August 1995, preamble and § 1, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1995 on the former Yugoslavia, the UN Security Council strongly condemned “all violations of international humanitarian law and of human rights in the territory of the former Yugoslavia” and reiterated that “all those who commit violations of international humanitarian law will be held individually responsible in respect of such acts”. 
UN Security Council, Res. 1034, 21 December 1995, § 1, voting record: 15-0-0.
UN Security Council
In a resolution on Burundi adopted in 1996, the UN Security Council recalled that “all persons who commit or authorize the commission of serious violations of international humanitarian law are individually responsible for such violations and should be held accountable” and reaffirmed “the need to put an end to impunity for such acts and the climate that fosters them”. 
UN Security Council, Res. 1072, 30 August 1996, preamble, voting record: 15-0-0.
UN Security Council
In a resolution on Angola adopted in 1996, the UN Security Council stressed “the need for the Angolan parties to give greater attention to preventing incidents of human rights abuse, investigating alleged human rights violations, and punishing those found guilty by due process of law”. 
UN Security Council, Res. 1087, 11 December 1996, preamble, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1998 on the situation in Afghanistan, the UN Security Council reaffirmed that “persons who commit … grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches”. 
UN Security Council, Res. 1193, 28 August 1998, § 12, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1999 on East Timor, the UN Security Council expressed “its concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian and human rights law have been committed in East Timor” and stressed that “persons committing such violations bear individual responsibility”. It also demanded that “those responsible for … acts [of violence in East Timor] be brought to justice”. 
UN Security Council, Res. 1264, 15 September 1999, preamble and § 1, voting record: 15-0-0.
UN Security Council
In the resolution establishing UNTAET in 1999 in the context of the situation in East Timor, the UN Security Council expressed “its concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian and human rights law have been committed in East Timor” and stressed that “persons committing such violations bear individual responsibility”. It also demanded that “those responsible for … violence [in East Timor] be brought to justice”.  
UN Security Council, Res. 1272, 25 October 1999, preamble and § 16, voting record: 15-0-0.
UN Security Council
By Resolution 1315 of 2000, the UN Security Council established the Special Court for Sierra Leone. In the resolution, it reaffirmed that “persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice”. 
UN Security Council, Res. 1315, 14 August 2000, preamble, voting record: 15-0-0.
The Security Council also recommended that:
The special court should have personal jurisdiction over persons who bear the greatest responsibility for the commission of the crimes referred to in paragraph 2 [notably crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone]. 
UN Security Council, Res. 1315, 14 August 2000, § 3, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 2003 on the situation concerning the Democratic Republic of the Congo, the UN Security Council:
Stresses that the military officers whose names are mentioned in the report of the United Nations High Commissioner for Human Rights in connection with serious violations of international humanitarian law and human rights should be brought to justice, through further investigation, and if warranted by that investigation, held accountable through a credible judicial process. 
UN Security Council, Res. 1468, 20 March 2003, § 3, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 2006 on the protection of civilians in armed conflict, the UN Security Council:
Reaffirms that ending impunity is essential if a society in conflict or recovering from conflict is to come to terms with past abuses committed against civilians affected by armed conflict and to prevent future such abuses, draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and “mixed” criminal courts and tribunals and truth and reconciliation commissions, and notes that such mechanisms can promote not only individual responsibility for serious crimes, but also peace, truth, reconciliation and the rights of the victims. 
UN Security Council, Res. 1674, 28 April 2006, § 7, voting record: 15-0-0.
UN Security Council
In 1992, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council condemned attacks on the UNPROFOR position in Sarajevo and stated: “The members of the Council call upon all parties to ensure that those responsible for these intolerable acts are quickly called to account.” 
UN Security Council, Statement by the President, UN Doc. S/24379, 4 August 1992.
UN Security Council
In February 1993, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council declared:
The deliberate impeding of the delivery of food and humanitarian relief essential for the survival of the civilian population in Bosnia and Herzegovina constitutes a violation of the Geneva Conventions of 1949 and the Council is committed to ensuring that individuals responsible for such acts are brought to justice. 
UN Security Council, Statement by the President, UN Doc. S/25334, 25 February 1993, p. 1.
UN Security Council
In March 1993, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council reaffirmed that “those guilty of crimes against international humanitarian law will be held individually responsible by the world community”. 
UN Security Council, Statement by the President, UN Doc. S/25361, 3 March 1993, p. 1.
UN Security Council
In April 1993, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council reaffirmed that “those guilty of crimes against international humanitarian law will be held individually responsible by the world community”. 
UN Security Council, Statement by the President, UN Doc. S/25520, 3 April 1993, p. 1.
UN Security Council
In April 1993, in a statement by its President following the death of persons detained by Bosnian Serb forces when the vehicle transporting them for work at the front was ambushed, the UN Security Council condemned all violations of the 1949 Geneva Convention III and IV and reaffirmed that “those who commit … such acts will be held personally responsible”. 
UN Security Council, Statement by the President, UN Doc. S/25557, 8 April 1993.
UN Security Council
In June 1993, in a statement by its President regarding the conflict in Angola, the UN Security Council strongly condemned an attack by the União Nacional para Independência Total de Angola (UNITA) on a train carrying civilians, qualifying it “as a clear violation of … international humanitarian law” and stressing that “those responsible must be held accountable”. 
UN Security Council, Statement by the President, UN Doc. S/25899, 8 June 1993.
UN Security Council
In October 1993, in a statement by its President following a reported “massacre of the civilian population … by troops of the Croatian Defence Council” and “accounts of attacks against UNPROFOR by armed persons bearing uniforms of the Bosnian Government forces, and of an attack to which an humanitarian convoy under the protection of UNPROFOR was subjected” in central Bosnia, the UN Security Council reiterated that “those responsible for such violations of international humanitarian law should be held accountable in accordance with the relevant resolutions of the Council”. 
UN Security Council, Statement by the President, UN Doc. S/26661, 28 October 1993.
UN Security Council
In January 1994, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council condemned “the flagrant violations of international humanitarian law which have occurred for which it holds the perpetrators individually responsible”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/1, 7 January 1994, p. 1.
UN Security Council
In March 1994, in a statement by its President regarding the conflict in Afghanistan, the UN Security Council recalled that “those who violate international humanitarian law bear individual responsibility”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/12, 23 March 1994.
UN Security Council
In April 1994, in a statement by its President on the situation in Rwanda, the UN Security Council condemned the killing of “Government leaders, many civilians and at least ten Belgian peace-keepers as well as the reported kidnapping of others” and stated that the perpetrators of these “horrific attacks … must be held responsible”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/16, 7 April 1994.
UN Security Council
In August 1994, in a statement by its President on the situation in Rwanda, the UN Security Council stated:
The Council encourages the Government of Rwanda to cooperate with the United Nations, in particular with the Commission of Experts established by the Council in its resolution 935 (1994), in ensuring that those guilty of the atrocities committed in Rwanda, in particular the crime of genocide, are brought to justice through an appropriate mechanism or mechanisms which will ensure fair and impartial trials in accordance with international standards of justice. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/42, 10 August 1994.
UN Security Council
In September 1994, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council condemned “all violations of international humanitarian law in the conflict in the Republic of Bosnia and Herzegovina, for which those who commit them are personally responsible”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/50, 2 September 1994.
UN Security Council
In October 1994, in a statement by its President on the situation in Rwanda, the UN Security Council reaffirmed its view that “those responsible for serious breaches of international humanitarian law and acts of genocide must be brought to justice”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/59, 14 October 1994, p. 2.
UN Security Council
In 1994, in a statement by its President on the situation in Burundi, the UN Security Council reaffirmed “the importance of bringing to justice those responsible for the coup of 21 October 1993 and subsequent inter-ethnic massacres and other violations of international humanitarian law”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1994/60, 21 October 1994.
UN Security Council
In July 1995, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council reaffirmed “its condemnation of all violations of international humanitarian law” and reiterated “to all concerned that those who have committed … such acts will be held individually responsible in respect of such acts”.  
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/33, 20 July 1995.
UN Security Council
In 1995, in a statement by its President on the situation in Croatia, the UN Security Council reminded “the parties of their responsibilities under international humanitarian law” and reiterated that “those who commit violations of international humanitarian law will be held individually responsible in respect of such acts”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/38, 4 August 1995.
UN Security Council
In September 1995, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council reiterated that “those who commit violations of international humanitarian law will be held individually responsible in respect of such acts”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/43, 7 September 1995, p. 1.
The same message was conveyed by the Security Council in a subsequent statement by its President. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/44, 7 September 1995, p. 2.
UN Security Council
In October 1995, in a statement by its President regarding the situation in Bosnia and Herzegovina, the UN Security Council reaffirmed that “those who have committed … violations of international humanitarian law will be held individually responsible for them”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1995/52, 12 October 1995, p. 2.
UN Security Council
In 1998, in a statement by its President on violations of international humanitarian law committed in Zaire/Democratic Republic of the Congo, the UN Security Council stated:
The Security Council recognizes the necessity to investigate further the massacres, other atrocities and violations of international humanitarian law and to prosecute those responsible. It deplores the delay in the administration of justice. The Council calls on the Governments of the Democratic Republic of the Congo and Rwanda to investigate without delay, in their respective countries, the allegations contained in the report of the Investigative Team and to bring to justice any persons found to have been involved in these or other massacres, atrocities and violations of international humanitarian law. The Council takes note of the stated willingness of the Government of the Democratic Republic of the Congo to try any of its nationals who are guilty of or were implicated in the alleged massacres … Such action is of great importance in helping to bring an end to impunity and to foster lasting peace and stability in the region. It urges Member States to cooperate with the Governments of the Democratic Republic of the Congo and Rwanda in the investigation and prosecution of these persons.
The UN Security Council expressed its readiness to consider, as necessary in light of actions by the Governments of the Democratic Republic of the Congo and Rwanda, additional steps to ensure that the perpetrators of the massacres, other atrocities and violations of international humanitarian law are brought to justice. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1998/20, 13 July 1998, p. 2.
UN Security Council
In 1998, in a statement by its President on the situation in the Democratic Republic of the Congo, the UN Security Council reaffirmed that “all persons who commit … grave breaches of the [Geneva Conventions of 1949 and the Additional Protocols of 1977] are individually responsible in respect of such breaches”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1998/26, 31 August 1998, pp. 1–2.
UN General Assembly
In a resolution adopted in 1946, the UN General Assembly affirmed “the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal”. It also called upon the Committee on the Progressive Development of International Law and its Codification (a predecessor of the International Law Commission)
to treat as a matter of primary importance plans for the formation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal. 
UN General Assembly, Res. 95 (I), 11 December 1946, adopted without a vote.
UN General Assembly
By Resolution 177 (II) of 1947, the UN General Assembly established the International Law Commission, which was directed, inter alia, to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal”. 
UN General Assembly, Res. 177 (II), 21 November 1947, § (a), voting record: 42-1-8-6.
However, after the International Law Commission had formulated the 1950 Nuremberg Principles, the General Assembly did not formally adopt them by a resolution.
UN General Assembly
In a resolution adopted in 1973 on principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the UN General Assembly stated:
Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the countries in which they have committed those crimes. 
UN General Assembly, Res. 3074 (XXVIII), 3 December 1973, § 5, voting record: 94-0-29-12.
UN General Assembly
In a resolution adopted in 1981 regarding the conflict in the Near East, the UN General Assembly expressed “deep concern that Israel, the occupying Power, has failed so far to apprehend and prosecute the perpetrators of the assassination attempts” which had been carried out against the Mayors of Nablus, Ramallah and Al Bireh. It referred to Article 27 of the 1949 Geneva Convention IV. 
UN General Assembly, Res. 36/147 G, 16 December 1981, preamble and § 1, voting record: 140-1-2-14.
UN General Assembly
In a resolution adopted in 1992 on the situation in Bosnia and Herzegovina, the UN General Assembly urged the UN Security Council “to consider recommending the establishment of an ad hoc international war crimes tribunal to try and punish those who have committed war crimes in the Republic of Bosnia and Herzegovina”. 
UN General Assembly, Res. 47/121, 18 December 1992, § 10, voting record: 102-0-57-20.
UN General Assembly
In a resolution adopted in 1993 in the context of the conflict in the former Yugoslavia, the UN General Assembly, “welcoming the establishment of the [International Criminal Tribunal for the former Yugoslavia]”, reaffirmed that “all persons who perpetrate or authorize crimes against humanity and other violations of international humanitarian law are individually responsible for those violations”. 
UN General Assembly, Res. 48/143, 20 December 1993, preamble and § 5, adopted without a vote.
UN General Assembly
In a resolution adopted in 1993 on the former Yugoslavia, the UN General Assembly, “welcoming the convening of the [International Criminal Tribunal for the former Yugoslavia] and the naming of its Chief Prosecutor”, stated that it supported “the determination of the Security Council that all persons who perpetrate or authorize violations of international humanitarian law are individually responsible for those breaches and that the international community shall exert every effort to bring them to justice”. 
UN General Assembly, Res. 48/153, 20 December 1993, preamble and § 7, adopted without a vote.
UN General Assembly
In a resolution adopted in 1994 on the situation in Bosnia and Herzegovina, the UN General Assembly, “welcoming the establishment of the [International Criminal Tribunal for the former Yugoslavia]”, affirmed “individual responsibility for the perpetration of crimes against humanity and other serious violations of international humanitarian law committed in Bosnia and Herzegovina”. 
UN General Assembly, Res. 49/10, 3 November 1994, preamble and § 26, voting record: 97-0-61-26.
UN General Assembly
In a resolution adopted in 1994 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly:
Notes that all serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991 are within the jurisdiction of the [International Criminal Tribunal for the former Yugoslavia], and that persons who commit such acts in the context of the existing conflict will be held accountable. 
UN General Assembly, Res. 49/196, 23 December 1994, § 11, voting record: 150-0-14-21.
UN General Assembly
In a resolution adopted in 1994 on the rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN General Assembly reaffirmed that “all persons who perpetrate or authorize crimes against humanity or other violations of international law are individually responsible for those violations”. 
UN General Assembly, Res. 49/205, 23 December 1994, § 6, adopted without a vote.
UN General Assembly
In a resolution adopted in 1994 on the situation of human rights in Rwanda, the UN General Assembly:
Reaffirms that all persons who commit or authorize genocide or other grave violations of international humanitarian law or those who are responsible for grave violations of human rights are individually responsible and accountable for those violations and … the international community will exert every effort to bring those responsible to justice in accordance with international principles of due process.  
UN General Assembly, Res. 49/206, 23 December 1994, § 4, adopted without a vote; see also Res. 50/200, 22 December 1995, § 6, adopted without a vote; and Res. 51/114, 12 December 1996, § 4, adopted without a vote.
The General Assembly also welcomed the establishment of the International Criminal Tribunal for Rwanda. 
UN General Assembly, Res. 49/206, 23 December 1994, § 5, adopted without a vote.
UN General Assembly
In a resolution adopted in 1995 on rape and abuse of women in areas of armed conflict in the former Yugoslavia, the UN General Assembly reaffirmed that “all persons who perpetrate or authorize crimes against humanity or other violations of international humanitarian law are individually responsible for those violations”. 
UN General Assembly, Res. 50/192, 22 December 1995, § 4, adopted without a vote.
UN General Assembly
In a resolution on the former Yugoslavia adopted in 1995, the UN General Assembly condemned “in the strongest terms all violations of human rights and international humanitarian law by the parties to the conflict” and stated that “persons who commit such acts will be held personally responsible and accountable”. 
UN General Assembly, Res. 50/193, 22 December 1995, § 3, voting record: 144-1-20-20.
UN General Assembly
In a resolution adopted in 1996 on the situation of human rights in Afghanistan, the UN General Assembly urged “the Afghan authorities … to bring perpetrators [of grave violations of human rights and of accepted humanitarian rules] to trial in accordance with internationally accepted standards”. 
UN General Assembly, Res. 51/108, 12 December 1996, § 11, adopted without a vote.
UN General Assembly
In a resolution adopted in 1996 on rape and abuse of women in the areas of armed conflict in the former Yugoslavia, the UN General Assembly reaffirmed that “all persons who perpetrate or authorize crimes against humanity or other violations of international humanitarian law are individually responsible for those violations”. 
UN General Assembly, Res. 51/115, 12 December 1996, § 4, adopted without a vote.
UN General Assembly
In a resolution adopted in 2001 entitled “Responsibility of States for internationally wrongful acts”, to which the 2001 ILC Draft Articles on State Responsibility, and thus Article 58 concerning “Individual responsibility”, was annexed, the UN General Assembly took note of the Draft Articles and commended them to the attention of governments “without prejudice to the question of their future adoption or other appropriate action”. 
UN General Assembly, Res. 56/83, 12 December 2001, § 3 and Annex, adopted without a vote.
UN General Assembly
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
… stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority, [and] that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed. 
UN General Assembly, Res. 58/164, 22 December 2003, § 2, adopted without a vote.
UN General Assembly
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture. 
UN General Assembly, Res. 59/182, 20 December 2004, § 4, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture. 
UN General Assembly, Res. 60/148, 16 December 2005, § 4, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture and of the updated set of principles for the protection of human rights through action to combat impunity. 
UN General Assembly, Res. 61/153, 19 December 2006, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1993 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Affirms that all persons who perpetrate or authorize violations of international humanitarian law, including the above-mentioned acts, are individually responsible and accountable for those violations and … the international community will exert every effort to bring those responsible for such violations to justice in accordance with internationally recognized principles of due process. 
UN Commission on Human Rights, Res. 1993/7, 23 February 1993, § 18, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1993 on rape and abuse of women in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Reaffirms that all persons who perpetrate or authorize crimes against humanity and other violations of international humanitarian law are individually responsible for those violations, and … those in positions of authority who have failed adequately to ensure that persons under their control comply with the relevant international instruments are accountable along with the perpetrators. 
UN Commission on Human Rights, Res. 1993/8, 23 February 1993, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1994 in the context of the conflict in the former Yugoslavia, the UN Commission on Human Rights reaffirmed that “all persons who perpetrate or authorize violations of international humanitarian law are individually responsible and accountable”. 
UN Commission on Human Rights, Res. 1994/72, 9 March 1994, § 17, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1994 on rape and abuse of women in the territory of the former Yugoslavia, the UN Commission on Human Rights:
Reaffirms that all persons who perpetrate or authorize crimes against humanity and other violations of international humanitarian law are individually responsible for those violations, and that those in positions of authority who have failed adequately to ensure that persons under their control comply with the relevant international instruments are accountable together with the perpetrators. 
UN Commission on Human Rights, Res. 1994/77, 9 March 1994, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1995 in the context of the conflict in the former Yugoslavia, the UN Commission on Human Rights reaffirmed that “all persons who perpetrate or authorize violations of international humanitarian law are individually responsible and accountable”. 
UN Commission on Human Rights, Res. 1995/89, 8 March 1995, § 19, voting record: 44-0-7.
UN Commission on Human Rights
In a resolution adopted in 1996 on the situation of human rights in Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia, the UN Commission on Human Rights reaffirmed that “all persons who plan, commit or authorize [violations of human rights and IHL] will be held personally responsible and accountable” and called upon the Government of Croatia “to pursue vigorously prosecutions against those suspected of past violations of international humanitarian law and human rights”. 
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, §§ 1 and 22, adopted without a vote.
UN Commission on Human Rights
In resolutions adopted in 1995 and 1996 on Rwanda, the UN Commission on Human Rights:
Reaffirms that all persons who commit or authorize genocide or other grave violations of international humanitarian law and those who are responsible for grave violations of human rights are individually responsible and accountable for those violations. 
UN Commission on Human Rights, Res. 1995/91, 8 March 1995, § 4, adopted without a vote; Res. 1996/76, 23 April 1996, § 4, adopted without a vote.
UN Commission on Human Rights
In a resolution on East Timor adopted in 1999, the UN Commission on Human Rights:
4. Affirms that all persons who commit or authorize violations of human rights or international humanitarian law are individually responsible and accountable for those violations and … the international community will exert every effort to ensure that those responsible are brought to justice, while affirming that the primary responsibility for bringing perpetrators to justice rests with national judicial systems.
5. Calls upon the Government of Indonesia:
(a) To ensure, in cooperation with the Indonesian National Commission on Human Rights, that the persons responsible for acts of violence and flagrant and systematic violations of human rights are brought to justice;
6. Calls upon the Secretary-General to establish an international commission of inquiry … in order … to gather and compile systematically information on possible violations of human rights and acts which may constitute breaches of international humanitarian law committed in East Timor since the announcement in January 1999 of the vote. 
UN Commission on Human Rights, Res. 1999/S-4/1, 27 September 1999, §§ 4, 5(a) and 6, adopted without a vote.
UN Commission on Human Rights
In a resolution on Sierra Leone adopted in 1999, the UN Commission on Human Rights reminded all factions and forces in Sierra Leone that “in any armed conflict, including an armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman treatment of persons taking no active part in the hostilities constitute grave breaches of international humanitarian law”. 
UN Commission on Human Rights, Res. 1999/1, 6 April 1999, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution on impunity adopted in 2002, the UN Commission on Human Rights emphasized “the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law”. It also recognized that “crimes such as genocide, crimes against humanity, war crimes and torture are violations of international law and that perpetrators of such crimes should be prosecuted … by States”. 
UN Commission on Human Rights, Res. 2002/79, 25 April 2002, §§ 2 and 11, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses in particular that all allegations of torture or other cruel, inhuman or degrading treatment or punishment should be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have taken place. 
UN Commission on Human Rights, Res. 2003/32, 23 April 2003, § 8, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 entitled “Impunity”, the UN Commission on Human Rights:
Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law, recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take action in accordance with their obligations under international law. 
UN Commission on Human Rights, Res. 2003/72, 25 April 2003, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 entitled “Impunity”, the UN Commission on Human Rights:
Emphasizes the importance of combating impunity to the prevention of violations of human rights and international humanitarian law and urges States to end impunity for such crimes by bringing the perpetrators, including accomplices, to justice in accordance with international law. 
UN Commission on Human Rights, Res. 2004/72, 21 April 2004, § 1, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on technical cooperation and advisory services in the Democratic Republic of the Congo, the UN Commission on Human Rights urged all parties:
To ensure that the military officers whose names are mentioned in the report of the High Commissioner in connection with serious violations of international humanitarian law and human rights should continue to be investigated and, if the conclusions of the investigations so warrant, be brought to justice. 
UN Commission on Human Rights, Res. 2004/84, 21 April 2004, § 4(d), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 entitled “Impunity”, the UN Commission on Human Rights:
1. Emphasizes the importance of combating impunity to the prevention of violations of human rights and international humanitarian law and urges States to end impunity for violations that constitute crimes by bringing the perpetrators, including accomplices, to justice in accordance with international law, in particular standards of justice, fairness and due process of law;
2. Recognizes that States must prosecute or extradite perpetrators, including accomplices, of international crimes such as genocide, crimes against humanity, war crimes and torture in accordance with their international obligations in order to bring them to justice, and urges all States to take effective measures to implement these obligations. 
UN Commission on Human Rights, Res. 2005/81, 21 April 2005, preamble and §§ 1–2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on technical cooperation and advisory services in the Democratic Republic of the Congo, the UN Commission on Human Rights:
5. Urges all the parties, including non-signatories of the Global and All-Inclusive Agreement on the Transition in the Democratic Republic of the Congo, signed in Pretoria on 17 September 2002:
(c) To ensure that the military officers whose names are mentioned in the report of the High Commissioner in connection with serious violations of international humanitarian law and human rights continue to be investigated, are suspended from duty until the investigations are completed and, if the conclusions of the investigations so warrant, are brought to justice. 
UN Commission on Human Rights, Res. 2005/85, 21 April 2005, § 5(c), adopted without a vote.
UN Sub-Commission on Human Rights
In a resolution adopted in 1993 on punishment of the crime of genocide, the UN Sub-Commission on Human Rights affirmed that “all persons who perpetrate or authorize the commission of genocide and related crimes are individually responsible for such actions”. 
UN Sub-Commission on Human Rights, Res. 1993/8, 20 August 1993, § 1.
UN Sub-Commission on Human Rights
In a resolution adopted in 2000 on the role of universal or extraterritorial competence in preventive action against impunity, the UN Sub-Commission on Human Rights stated that it believed that “the highest priority should be given, independently of the circumstances in which these violations were committed, to legal proceedings against all individuals responsible for war crimes and crimes against humanity, including former heads of State or Government”. 
UN Sub-Commission on Human Rights, Res. 2000/24, 18 August 2000, § 2.
UN Secretary-General
In 1993, in his report on the draft ICTY Statute, the UN Secretary-General stated:
53. An important element in relation to the competence ratione personae (personal jurisdiction) of the [International Criminal Tribunal for the former Yugoslavia] is the principle of individual criminal responsibility … The Security Council has reaffirmed in a number of resolutions that persons committing serious violations of international humanitarian law in the former Yugoslavia are individually responsible for such violations.
54. The Secretary-General believes that all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible. 
UN Secretary-General, Report pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, §§ 53–54.
UN Secretary-General
In 2001, in the recommendations in his report on the protection of civilians in armed conflict, the UN Secretary-General urged
the Security Council and the General Assembly to provide, from the outset, reliable, sufficient and sustained funding for international efforts, whether existing or future international tribunals, arrangements established in the context of United Nations peace operations or initiatives undertaken in concert with individual Member States, to bring to justice perpetrators of grave violations of international humanitarian and human rights law. 
UN Secretary-General, Report on the protection of civilians in armed conflict, UN Doc. S/2001/331, 30 March 2001, Recommendation 1.
UN Deputy Secretary-General
In 2000, during a debate in the UN Security Council regarding the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, the UN Deputy Secretary-General stated, inter alia, that “the perpetrators of attacks against United Nations and humanitarian personnel must be brought to justice”. 
UN Deputy Secretary-General, Statement before the UN Security Council, UN Doc. S/PV.4100 (Resumption 1), 9 February 2000, p. 11.
UN Commission on Human Rights (Special Rapporteur)
In 1997, in his second report on the situation of human rights in Burundi, the Special Rapporteur of the UN Commission on Human Rights stated:
In requesting the de facto authorities to take steps to punish the blunders and the massacres, the Special Rapporteur is seeking, not to single them out, but rather to encourage them to honour the commitments made earlier by the Burundi Government. As he said in his previous report to the General Assembly … the violence and the unrest which prevail in Burundi can be attributed to several actors or parties, first and foremost to the armed forces and the security forces, next, to the militias, which are related to them, and, lastly, to an armed opposition that itself comprises various groups. All these actors are responsible, although to varying degrees, for the grave violations of human rights and international humanitarian law which are being perpetrated. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Burundi, Second report, UN Doc. E/CN.4/1997/12, 10 February 1997, § 11.
UN Commission on Human Rights (Special Representative)
In 2000, in a report on the situation of human rights in Rwanda, the Special Representative of the UN Commission on Human Rights stated that, as at 30 November 1999, 2,406 of the 121,500 persons in detention had been tried in Rwanda before a special genocide court. Of these, 348 (14.4 per cent) were condemned to death, 30.3 per cent were sentenced to life imprisonment, 34 per cent received jail terms of between 1 and 20 years, and 19 per cent were acquitted. The Special Representative also noted and applauded the introduction of a new system of community justice for genocide suspects known as gacaca. 
UN Commission on Human Rights, Special Representative on the Situation of Human Rights in Rwanda, Report, UN Doc. A/55/269, 4 August 2000, §§ 144 and 156–176.
UN Commission on Human Rights (Special Rapporteur)
In 1998, in a report submitted to the UN Sub-Commission on Human Rights on systematic rape, sexual slavery and slavery-like practices during armed conflict, the Special Rapporteur stated:
Individual perpetrators of slavery, crimes against humanity, genocide, torture and war crimes – whether State or non-State actors – must be held responsible for their crimes at the international level, depending on the circumstances of the case and on the capacity and availability of forums to adjudicate fairly and dispense justice adequately. 
UN Sub-Commission on Human Rights, Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Wartime, Report, UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, § 113.
UN High Commissioner for Human Rights
In 1999, in a report on the situation in East Timor, the UN High Commissioner for Human Rights stated:
4. It has become a widely accepted principle of contemporary international law and practice that wherever human rights are being grossly violated … the facts must be gathered with a view to shedding light on what has taken place and with a view to bringing those responsible to justice; and that the perpetrators of gross violations must be made accountable and justice rendered to the victims.
48. The High Commissioner has urged the Indonesian authorities to cooperate in the establishment of an international commission of inquiry into the violations so that those responsible are brought to justice. 
UN High Commissioner for Human Rights, Report on the situation of human rights in East Timor, UN Doc. E/CN.4/2000/44, 24 March 2000, §§ 4 and 48.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) stated: “There does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes.” 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 42.
Referring to common Article 3 of the 1949 Geneva Conventions, the 1977 Additional Protocol II and Article 19 of the 1954 Hague Convention for the Protection of Cultural Property, the Commission noted that these provisions did not use the terms “grave breaches” or “war crimes”. It added that “the content of customary law applicable to internal armed conflict is debatable”, and as a result, “in general, unless the parties to an internal armed conflict agree otherwise, the only offences committed in internal armed conflict for which universal jurisdiction exists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’ classification”. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, § 52.
UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994)
In 1994, in its preliminary report on grave violations of IHL in Rwanda, the UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994) strongly recommended that “the Security Council take all necessary and effective action to ensure that the individuals responsible for the serious violations of human rights in Rwanda during armed conflict … are brought to justice before an independent and impartial international criminal tribunal”. 
UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994), Preliminary report, UN Doc. S/1994/1125, 4 October 1994, § 150.
UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994)
In 1994, in its final report on grave violations of IHL in Rwanda, the UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994) noted that it had been informed by the Rwandan Minister of Defence that the government had detained 70 Front Patriotique Rwandais (FPR) soldiers and intended to try and punish them for private acts of revenge exacted against Hutus. The government emphasized that these acts were not only unauthorized, but subject to heavy military discipline and punishment. The Commission of Experts considered that “the armed conflict between 6 April and 15 July 1994 qualifies as a non-international armed conflict”. 
UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994), Final report, UN Doc. S/1994/1405, 9 December 1994, §§ 99 and 108.
International Commission of Inquiry in Burundi
In 1996, in its final report, the International Commission of Inquiry in Burundi stated with regard to the assassination of Burundi’s President Ndadaye as well as that of the person constitutionally entitled to succeed him that it was “not in a position to identify the person that should be brought to justice for this crime”. 
International Commission of Inquiry in Burundi, Final report, UN Doc. S/1996/682, 22 August 1996, Annex, § 213.
It also stated that “evidence is sufficient to establish that acts of genocide … took place in Burundi”, noting, however, that “with the evidence at hand, it is not in a position to identify by name the persons that should be brought to justice for the acts to which the conclusions refer”. 
International Commission of Inquiry in Burundi, Final report, UN Doc. S/1996/682, 22 August 1996, Annex, § 487.
UN Committee on the Progressive Development of International Law and its Codification
In a report in 1947, the UN Committee on the Progressive Development of International Law and its Codification concluded that the International Law Commission should be established which would have to formulate the Nuremberg Principles within a Code of Offences against the Peace and Security of Mankind. 
UN Committee on the Progressive Development of International Law and its Codification, Report, UN Doc. A/332, 21 July 1947.
International Law Commission
The International Law Commission’s Commentary on Principle I of the 1950 Nuremberg Principles states: “The general rule underlying Principle I is that international law may impose duties on individuals directly without any interposition of internal law.” 
International Law Commission, Report of the International Law Commission Covering its Second Session, UN Doc. A/1316, 5 June–29 July 1950, § 99.
International Law Commission
The International Law Commission’s Commentary on Principle II of the 1950 Nuremberg Principles states:
This Principle is a corollary to Principle I. Once it is admitted that individuals are responsible for crimes under international law, it is obvious that they are not relieved from their international responsibility by the fact that their acts are not held to be crimes under the law of any particular country … The principle that a person who has committed an international crime is responsible therefor and liable to punishment under international law, independently of the provisions of internal law, implies what is commonly called the “supremacy” of international law over national law. 
International Law Commission, Report of the International Law Commission Covering its Second Session, UN Doc. A/1316, 5 June–29 July 1950, §§ 100–102.
Council of Europe Parliamentary Assembly
In a resolution adopted in 1991, the Council of Europe Parliamentary Assembly called for a war crimes tribunal to be established to deal with crimes committed by the Iraqi authorities during the Gulf War. 
Council of Europe, Parliamentary Assembly, Res. 954, 29 January 1991, § 11.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1992, the Council of Europe Parliamentary Assembly called for the establishment of a permanent international court to try war criminals generally. 
Council of Europe, Parliamentary Assembly, Rec. 1189, 1 July 1992.
Council of Europe Parliamentary Assembly
In 1993 and 1995, the Council of Europe Parliamentary Assembly welcomed the establishment of the International Criminal Tribunal for the former Yugoslavia, condemning all human rights violations committed during the conflicts in the former Yugoslavia and insisting that “the perpetrators of such offences be brought to justice”. 
Council of Europe, Parliamentary Assembly, Rec. 1218, 27 September 1993; Res. 1066, 27 September 1995, § 7.
European Community Ministers of Foreign Affairs
In a declaration adopted in 1991, the EC Ministers of Foreign Affairs expressed their determination that “those responsible for the unprecedented violence in Yugoslavia, with its ever-increasing loss of life, should be held accountable under international law for their actions”. 
European Community, Declaration on Yugoslavia, Haarzuilens, 6 October 1991, annexed to Letter dated 7 October 1991 from the Netherlands to the UN Secretary-General, UN Doc. A/46/533, 7 October 1991, Annex II.
EU Council
In 1994, in a statement contained in a EU Council decision related to a EU common position adopted on Rwanda, the Council of the EU stressed
the importance of bringing to justice those responsible for the grave violations of humanitarian law, including genocide. In this respect the European Union considers the establishment of an international tribunal as an essential element to stop a tradition of impunity and to prevent future violations of human rights. 
EU, Council, Decision 94/697/CFSP concerning the common position adopted on the basis of Article J.2 of the Treaty of the European Union on the objectives and priorities of the European Union vis-à-vis Rwanda, 24 October 1994, Official Journal L 283, 29 October 1994, pp. 1–2, Article 1 and Annex.
GCC Supreme Council
In the Final Communiqué of its 13th Session in 1992, the GCC Supreme Council demanded, with regard to the “Serb Aggression on the Republic of Bosnia and Herzegovina”, that the UN Security Council bring to account “all those responsible for crimes committed against humanity, in accordance with the Geneva Conventions”. 
GCC, Supreme Council, 13th Session, Abu Dhabi, 21–23 December 1992, Final Communiqué, annexed to Letter dated 24 December 1992 from the UAE to the UN Secretary-General, UN Doc. A/47/845-S/25020, 30 December 1992, p. 9.
League of Arab States Council
In a resolution adopted in 1983, the League of Arab States Council invited the UN Secretary-General to send a fact-finding committee to investigate the occurrence in the territories occupied by Israel of “crimes which breach international charters, conventions and resolutions on the protection of civilian populations in times of occupation and to organize the trials of those who perpetrate such crimes against humanity”. 
League of Arab States, Council, Res. No. 4238, 31 March 1993, § 3.
OAU Council of Ministers
In a resolution adopted in 1996 on Liberia, the OAU Council of Ministers warned the warring faction leaders that:
Should the ECOWAS assessment of the Liberian peace process … turn out to be negative, the OAU will help sponsor a draft resolution in the UN Security Council for the imposition of severe sanctions on them including the possibility of the setting up of a war crime tribunal to try the leadership of the Liberian warring factions on the gross violation of the human rights of Liberians. 
OAU, Council of Ministers, Sixty-Fourth Ordinary Session, Yaoundé, 1–5 July 1996, Res. 1650 (LXIV), § 12, reprinted in UN Doc. A/51/524, 18 October 1996, p. 15.
CSCE Helsinki Summit (1992)
In 1992, at the Helsinki Summit of Heads of State or Government, CSCE participating States recalled that “those who violate international humanitarian law are held personally accountable”. 
CSCE, Helsinki Summit of Heads of State or Government, Helsinki, 9–10 July 1992, Helsinki Document 1992: The Challenges of Change, Decisions, Chapter VI: The Human Dimension, § 49.
CSCE Ministerial Council
In a decision adopted in 1993, the Ministerial Council of the CSCE stated:
The Ministers focused attention on the need for urgent action to enforce the strict observance of the norms of international humanitarian law, including the prosecution and punishment of those guilty of war crimes and other crimes against humanity. 
CSCE, Ministerial Council, Fourth Meeting: CSCE and the New Europe – Our Security is Indivisible, Rome, 30 November 1993–1 December 1993, Decisions, Chapter X: Declaration on Aggressive Nationalism, Racism, Chauvinism, Xenophobia and Anti-Semitism, § 4.
African Conference on the Use of Children as Soldiers
In the Maputo Declaration on the Use of Children as Soldiers, the participants at the African Conference on the Use of Children as Soldiers in 1999 called upon all African States to bring to justice “those who continue to recruit or use children as soldiers”. 
African Conference on the Use of Children as Soldiers, Maputo, 19–22 April 1999, Maputo Declaration on the Use of Children as Soldiers, § 2.
African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict
In the Final Declaration of the African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict in 2002, the participants committed themselves to see “that individuals responsible for violations of [IHL] be brought to justice and punished”. 
African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict, Niamey, 18–20 February 2002, Final Declaration, preamble and § 11.
International Military Tribunal for Germany
In its judgment of 1946, the International Military Tribunal for Germany asserted that the Charter which had established it, inasmuch as it provided for individual responsibility for crimes against the peace, war crimes and crimes against humanity, “is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal … is the expression of international law existing at the time of its creation”. 
International Military Tribunal for Germany, Judgment, 1 October 1946, § 2.
Still on the subject of individual responsibility, the Tribunal rejected arguments that international law was exclusively concerned with the actions of sovereign States and provided no punishment for individuals. The Tribunal held that it was long established that international law imposed duties and liabili7ties on individuals as well as on States and referred to a number of authorities which showed that individuals could be punished for violations of international law. It added that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. 
International Military Tribunal for Germany, Judgment, 1 October 1946, pp. 218, 222 and 223.
International Court of Justice
In its judgment on preliminary objections in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 1996, the ICJ addressed the Federal Republic of Yugoslavia’s contention that the 1948 Genocide Convention was not applicable in internal conflicts. The Court referred to Article 1 of the Convention, which provides that “genocide, whether committed in time of peace or in time of armed war, is a crime under international law which [the Contracting Parties] undertake to prevent and punish”. The ICJ determined that there was nothing in this provision “which would make the applicability of the Convention subject to the condition that the acts contemplated by it should have been committed within the framework of a particular type of conflict”. 
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) , Preliminary Objections, Judgment, 11 July 1996, § 31.
International Criminal Court
In the Katanga and Chui case before the ICC, the accused, respectively the alleged commander of the Front for Patriotic Resistance of Ituri (FRPI) and the alleged former leader of the Nationalist and. Integrationist Front (FNI) in the Democratic Republic of the Congo, were charged with jointly committing through other persons various crimes against humanity and war crimes under Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2008, the Pre-Trial Chamber considered individual criminal responsibility. Firstly, the Pre-Trial Chamber set out its approach to distinguishing between principals and accessories to a crime, stating:
480. In the Lubanga Decision, the Chamber found that when a criminal offence is committed by a plurality of persons, the definitional criterion of the concept “joint commission” is linked to the distinguishing criterion between principals and accessories to a crime. After a concise analysis of the three main approaches for distinguishing between principals and accessories to a crime – the objective criterion approach, the subjective criterion approach and the “control over the crime” approach – the Chamber provided its reasons for supporting the leading approach of “control over the crime”.
481. The methodology for deciding between these three approaches was to analyse their consistency with the [1998 ICC] Statute, which is the first source of applicable law for this Court under article 21(1)(a) of the Statute. Application of the Statute requires not only resorting to a group of norms by applying any of the possible meanings of the words in the Statute but also requires excluding at least those interpretations of the Statute in which application would engender an asystematic corpus juris of unrelated norms.
482. The latter is precisely the effect that would result should co-perpetration be based on the objective criterion approach to distinguishing between principals and accessories. According to this approach, only those individuals who physically carry out one or more elements of the crimes could be considered principals to the crime. In the Lubanga Decision, the Chamber ruled that the objective criterion approach was rejected by article 25(3)(a) of the Statute, which provides for “commission through another person”. If, under the Statute, it is possible for a person who does not physically carry out any of the elements of the crime to be considered a principal, the objective criterion should be rejected as the leading principle for the distinction between principals and accessories. In addition, the modem doctrine has generally rejected the objective criterion approach.
483. The Chamber next observed that an interpretation of the Statute by an application of the subjective criterion would be inconsistent with the provision for accessory responsibility in article 25(3)(d) of the Statute. If the subjective approach were the basis for distinguishing between principals and accessories, those who know of the intent of a group of persons to commit a crime, and who then aim to further this criminal activity by intentionally contributing to its commission, should be considered principals rather than accessories to a crime. In particular, the Chamber noted that because article 25(3)(d) of the Statute begins with, “[i]n any other way contributes to the commission or attempted commission of such a crime”, it must be concluded that the Statute rejects the subjective criterion approach. Additionally, the modern legal doctrine rejects this approach for distinguishing between principals and accessories to a crime.
484. By adopting the final approach of control over the crime, the Chamber embraces a leading principle for distinguishing between principals and accessories to a crime, one that synthesises both objective and subjective components, since:
[ … ] the doctrine of control over the crime corresponds to an evolution of subjective and objective approaches, such that it effectively represents a synthesis of previously opposed views and doubtless owes its broad acceptance to this reconciliation of contrary positions.
485. The control over the crime approach has been applied in a number of legal systems, and is widely recognised in legal doctrine. The key insight underpinning this approach has been described as follows:
(P]rincipals to a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed. [ICC, Lubanga case, Decision on the confirmation of charges, § 330]
486. The Chamber considers that in order for the Statute to be understood as a consistent body of predictable law, the criminal responsibility of a person – whether as an individual, jointly with another or through another person – must be determined under the control over the crime approach to distinguishing between principals and accessories. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 480–486.
[footnotes in original omitted; emphasis in original]
The Pre-Trial Chamber then defined principal responsibility, stating:
487. Article 25(2) of the [1998 ICC] Statute establishes that individual responsibility must be consistent with the Statute. This provision expresses the idea that a person may not be criminally responsible under the Statute unless the attributed conduct constitutes a crime under the jurisdiction of the Court (article 22(1) of the Statute).
488. A definition of a principal that is predicated on the requirement of exercising control over the crime means that, for the purposes of distinguishing the three forms of principal liability provided for in article 25(3)(a) of the Statute, a principal is one who:
a. physically carries out all elements of the offence (commission of the crime as an individual);
b. has, together with others, control over the offence by reason of the essential tasks assigned to him (commission of the crime jointly with others); or
c. has control over the will of those who carry out the objective elements of the offence (commission of the crime through another person).
491. The Chamber notes that article 25(3)(a) uses the connective “or”, a disjunction (or alternation). Two meanings can be attributed to the word “or” – one known as weak or inclusive and the other strong or exclusive. An inclusive disjunction has the sense of “either one or the other, and possibly both” whereas an exclusive disjunction has the sense of “either one or the other, but not both”. Therefore, to interpret the disjunction in article 25(3)(a) of the Statute as either “inclusive” or “exclusive” is possible from a strict textualist interpretation. In the view of the Chamber, basing a person’s criminal responsibility upon the joint commission of a crime through one or more persons is therefore a mode of liability “in accordance with the Statute”.
492. The Chamber finds that there are no legal grounds for limiting the joint commission of the crime solely to cases in which the perpetrators execute a portion of the crime by exercising direct control over it. Rather, through a combination of individual responsibility for committing crimes through other persons together with the mutual attribution among the co-perpetrators at the senior level, a mode of liability arises which allows the Court to assess the blameworthiness of “senior leaders” adequately.
493. An individual who has no control over the person through whom the crime would be committed cannot be said to commit the crime by means of that other person. However, if he acts jointly with another individual – one who controls the person used as an instrument – these crimes can be attributed to him on the basis of mutual attribution. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 487–488 and 491–493.
[footnotes in original omitted]
The Pre-Trial Chamber then considered the objective elements of liability for commission of a crime through another person, regardless of whether that person is criminally responsible, stating:
495. The commission of a crime through another person is a model of criminal responsibility recognised by the world’s major legal systems. The principal (the “perpetrator-by-means”) uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime. Typically, the executor who is being used as a mere instrument will not be fully criminally responsible for his actions. As such, his innocence will depend upon the availability of acceptable justifications and/or excuses for his actions. Acceptable justifications and excuses include the person’s: i) having acted under a mistaken belief; ii) acted under duress; and/or iii) not having the capacity for blameworthiness.
496. A concept has developed in legal doctrine that acknowledges the possibility that a person who acts through another may be individually criminally responsible, regardless of whether the executor (the direct perpetrator) is also responsible. This doctrine is based on the early works of Claus Roxin and is identified by the term: “perpetrator behind the perpetrator” (Täter hinter dem Täter).
497. The underlying rationale of this model of criminal responsibility is that the perpetrator behind the perpetrator is responsible because he controls the will of the direct perpetrator. As such, in some scenarios it is possible for both perpetrators to be criminally liable as principals: the direct perpetrator for his fulfilment of the subjective and objective elements of the crime, and the perpetrator behind the perpetrator for his control over the crime via his control over the will of the direct perpetrator.
498. Several groups of cases have been presented as examples for the perpetrator behind the perpetrator’s being assigned principal responsibility despite the existence of a responsible, direct perpetrator (i.e., one whose actions are not exculpated by mistake, duress, or the lack of capacity for blameworthiness). This notwithstanding, the cases most relevant to international criminal law are those in which the perpetrator behind the perpetrator commits the crime through another by means of “control over an organisation” (Organisationsherrschaft).
499. Despite some criticism of this doctrine, the Chamber notes that the drafters of the Rome Statute sought to establish a mode of commission in article 25(3)(a) of the [1998 ICC] Statute which encompasses the commission of a crime through a non-innocent individual (i.e. responsible) acting as an instrument. Accordingly, … assigning the highest degree of responsibility for commission of a crime – that is, considering him a principal – to a person who uses another, individually responsible person to commit a crime, is not merely a theoretical possibility in scarce legal literature, but has been codified in article 25(3)(a) of the Statute.
a. Control over the organisation
500. For the purposes of this Decision, the control over the crime approach is predicated on a notion of a principal’s “control over the organisation”. The Chamber relies on this notion of “control over the organisation” for numerous reasons, including the following: (i) it has been incorporated into the framework of the Statute; (ii) it has been increasingly used in national jurisdictions; and (iii) it has been addressed in the jurisprudence of the international tribunals. Such notion has also been endorsed in the jurisprudence of Pre-Trial Chamber III of this Court.
501. The most important reason for this Chamber’s deciding for this mode of liability is that it has been incorporated into the framework of the Statute. The crimes falling within the jurisdiction of this Court – those of “the most serious [ … ] concern to the international community as a whole”, and which “threaten the peace, security, and well-being of the world” – will almost inevitably concern collective or mass criminality. The Chamber finds that by specifically regulating the commission of a crime through another responsible person, the Statute targets the category of cases which involves a perpetrator’s control over the organisation.
502. Prior and subsequent to the drafting of the Statute, numerous national jurisdictions relied on the concept of perpetration through control over an organisation in order to attribute principal responsibility to “leaders” in respect of such crimes. Generally, in crimes committed by several people, these jurisdictions have treated those further from the actual execution of the criminal acts as less culpable.
503. However, a person’s blameworthiness has also been described as increasing in tandem with a rise in the hierarchy: the higher in rank or farther detached the mastermind is from the perpetrator, the greater that person’s responsibility will be. As articulated by the District Court of Jerusalem in the Eichmann Trial:
In such an enormous and complicated crime [ … ] wherein many people participated at various levels and in various modes of activities [ … ] committed in masse [ … ] the extent to which any one of the many criminals were close to, or remote from, the actual killer of the victim means nothing as far as the measure of his responsibility is concerned. In the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher ranks of command.
504. As previously mentioned, many national jurisdictions used the notion of control over the organisation to hold the highest authorities within an organisation responsible as the principal, rather than as an accessory. The Defence for Germain Katanga submitted that, although this notion was applied by the Appeals Chamber in the Argentine Junta Trial, the decision was overturned by the National Supreme Court. According to the Defence for Germain Katanga, the Supreme Court rejected the theory on the ground that it had not been applied in Germany (its country of origin), and also because it could lead to inequitable results.
505. Rejection by an Argentine court can hardly be said to preclude the International Criminal Court from resorting to this notion of criminal responsibility if it finds compelling reasons to do so. Nonetheless, German jurisprudence was in fact applied to this notion in the East German Border Trials. Moreover, while the present Decision will not discuss the Argentine Supreme Court’s reasons for rejecting liability based upon “control over an organised apparatus of power” in the aforementioned case, it is worth noting that the concept was impugned in part because it created a “contradiction” in its simultaneous incorporation, as principals, of an indirect perpetrator and a direct perpetrator. As already stated, article 25(3)(a) of the Statute has criminalised precisely the kind of responsibility that embodies such an apparent contradiction.
506. This doctrine has also been applied in international criminal law in the jurisprudence of the international tribunals. In The Prosecutor v. Milomir Stakić Judgement, Trial Chamber II of the ICTY relied on the liability theory of co-perpetration of a crime through another person as a way to avoid the inconsistencies of applying the so-called “Joint Criminal Enterprise” theory of criminal liability to senior leaders and commanders.
507. As noted by the Defence for Germain Katanga, the Trial Chamber’s Judgement was overturned on appeal. However, the reasoning of the ICTY Appeals Chamber’s Judgement is of utmost importance to an understanding of why the impugned decision does not obviate its validity as a mode of liability under the Rome Statute.
508. The Appeals Chamber rejected this mode of liability by stating that it did not form part of customary international law. However, under article 21(1)(a) of the Statute, the first source of applicable law is the Statute. Principles and rules of international law constitute a secondary source applicable only when the statutory material fails to prescribe a legal solution. Therefore, and since the Rome Statute expressly provides for this specific mode of liability, the question as to whether customary law admits or discards the “joint commission through another person” is not relevant for this Court. This is a good example of the need not to transfer the ad hoc tribunals’ case law mechanically to the system of the Court.
509. Finally, most recently, the Pre-Trial Chamber III of the Court also endorsed this notion of individual criminal responsibility in the case of The Prosecutor v. Jean-Pierre Bemba Gombo. Having established the suspect’s position as the leader of the organisation and described the functioning of the militia, the Pre-Trial Chamber III stated:
In light of the foregoing, the Chamber considers that there are reasonable grounds to believe that, as a result of his authority over his military organisation, Mr. [ … ] had the means to exercise control over the crimes committed by MLC troops deployed in the CAR. [ICC, Bemba case, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, § 78]
510. In sum, the acceptance of the notion of “control over an organised apparatus of power” in modern legal doctrine, its recognition in national jurisdictions, its discussion in the jurisprudence of the ad hoc tribunals which, as demonstrated, should be distinguished from its application before this Court, its endorsement in the jurisprudence of the Pre-Trial Chamber III of the International Criminal Court but, most importantly, its incorporation into the legal framework of the Court, present a compelling case for the Chamber’s allowing this approach to criminal liability for the purposes of this Decision.
b. Organised and hierarchical apparatus of power
511. There are several aspects of an organisational apparatus of power that allow it to serve the object and purpose of enabling the perpetrator behind the perpetrator to commit crimes through his subordinates.
512. The Chamber finds that the organisation must be based on hierarchical relations between superiors and subordinates. The organisation must also be composed of sufficient subordinates to guarantee that superiors’ orders will be carried out, if not by one subordinate, then by another. These criteria ensure that orders given by the recognised leadership will generally be complied with by their subordinates.
513. In the view of the Chamber, it is critical that the chief, or the leader, exercises authority and control over the apparatus and that his authority and control are manifest in subordinates’ compliance with his orders. His means for exercising control may include his capacity to hire, train, impose discipline, and provide resources to his subordinates.
514. The leader must use his control over the apparatus to execute crimes, which means that the leader, as the perpetrator behind the perpetrator, mobilises his authority and power within the organisation to secure compliance with his orders. Compliance must include the commission of any of the crimes under the jurisdiction of this Court.
c. Execution of the crimes secured by almost automatic compliance with the orders
515. In addition, particular characteristics of the organised and hierarchical apparatus enable the leader to actually secure the commission of crimes. In essence, the leader’s control over the apparatus allows him to utilise his subordinates as “a mere gear in a giant machine” in order to produce the criminal result “automatically”:
[ … ] the direct author of the crime is still a free and responsible agent, who is punishable as the perpetrator with personal responsibility. But this circumstance is irrelevant in relation to the control exercised by the intellectual author, since from his viewpoint, the perpetrator does not represent a free and responsible individual, but an anonymous, interchangeable figure. While his power of control over his own actions is unquestionable, the perpetrator is nonetheless, at the same time, a mere gear in the wheel of the machinery of power who can be replaced at any time, and this dual perspective places the intellectual author alongside the perpetrator at the heart of events.
516. Above all, this “mechanisation” seeks to ensure that the successful execution of the plan will not be compromised by any particular subordinate’s failure to comply with an order. Any one subordinate who does not comply may simply be replaced by another who will; the actual executor of the order is merely a fungible individual. As such, the organisation also must be large enough to provide a sufficient supply of subordinates.
517. The main attribute of this kind of organisation is a mechanism that enables its highest authorities to ensure automatic compliance with their orders. Thus, “[s]uch Organisation develops namely a life that is independent of the changing composition of its members. It functions, without depending on the individual identity of the executant, as if it were automatic.” An authority who issues an order within such an organisation therefore assumes a different kind of responsibility than in ordinary cases of criminal ordering. In the latter cases, article 25(3)(b) of the Statute provides that a leader or commander who orders the commission of a crime may be regarded as an accessory.
518. Attributes of the organisation – other than the replaceability of subordinates – may also enable automatic compliance with the senior authority’s orders. An alternative means by which a leader secures automatic compliance via his control of the apparatus may be through intensive, strict, and violent training regimens. For example, abducting minors and subjecting them to punishing training regimens in which they are taught to shoot, pillage, rape, and kill, may be an effective means for ensuring automatic compliance with leaders’ orders to commit such acts. The leader’s ability to secure this automatic compliance with his orders is the basis for his principal – rather than accessorial – liability. The highest authority does not merely order the commission of a crime, but through his control over the organisation, essentially decides whether and how the crime would be committed. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 495–518.
[footnotes in original omitted]
The Pre-Trial Chamber also considered the objective elements required for liability for joint commission of a crime, whether directly or through another person, regardless of whether that person is criminally responsible. In this respect, it stated:
520. … The Lubanga Decision, which referred to joint commission as “co-perpetration”, defined and explained this mode of liability under article 25(3)(a) [of the 1998 ICC Statute], as follows:
[t]he concept of co-perpetration is originally rooted in the idea that when the sum of the coordinated individual contributions of a plurality of persons results in the realisation of all the objective elements of a crime, any person making a contribution can be held vicariously responsible for the contributions of all the others and, as a result, can be considered as a principal to the whole crime. [ICC, Lubanga case, Decision on the confirmation of charges, § 325]
521. Co-perpetration based on joint control over the crime involves the division of essential tasks between two or more persons, acting in a concerted manner, for the purposes of committing that crime. As explained, the fulfilment of the essential task(s) can be carried out by the co-perpetrators physically or they may be executed through another person.
a. Existence of an agreement or common plan between two or more persons
522. In the view of the Chamber, the first objective requirement of co-perpetration based on joint control over the crime is the existence of an agreement or common plan between the persons who physically carry out the elements of the crime or between those who carry out the elements of the crime through another individual. Participation in the crimes committed by the latter without coordination with one’s co-perpetrators falls outside the scope of co-perpetration within the meaning of article 25(3)(a) of the Statute.
523. As explained in the Lubanga Decision, the common plan must include the commission of a crime. Furthermore, the Chamber considered that the agreement need not be explicit, and that its existence can be inferred from the subsequent concerted action of the co-perpetrators.
b. Coordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the crime
524. The Chamber considers that the second objective requirement of co-perpetration based on joint control over the crime is the coordinated essential contribution made by each co-perpetrator resulting in the realisation of the objective elements of the crime.
525. When the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned – and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks – can be said to have joint control over the crime. Where such persons commit the crimes through others, their essential contribution may consist of activating the mechanisms which lead to the automatic compliance with their orders and, thus, the commission of the crimes.
526. Although some authors have linked the essential character of a task – and hence, the ability to exercise joint control over the crime – to its performance at the execution stage, the Statute does not [encompass] any such restriction. Designing the attack, supplying weapons and ammunitions, exercising the power to move the previously recruited and trained troops to the fields; and/or coordinating and monitoring the activities of those troops, may constitute contributions that must be considered essential regardless of when are they exercised (before or during the execution stage of the crime). 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 520–526.
[footnotes in original omitted]
The Pre-Trial Chamber then set out the subjective elements of liability for joint commission or “co-perpetration” through another person, stating:
a. The suspects must carry out the subjective elements of the crimes
527. The Chamber finds that the commission of the crimes requires that the suspects carry out the subjective elements of the crimes with which they are charged, including any required dolus specialis or ulterior intent for the type of crime involved.
528. Article 30 of the [1998 ICC] Statute sets out the general subjective element for all crimes within the jurisdiction of the Court, specifying that, “[u]nless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” The general mental element of the crime is satisfied:
i. if the person means to engage in the relevant conduct with the intent to cause the relevant consequence, and/or is aware that it will occur in the ordinary course of events; and
ii. if the person is “[aware] that a circumstance exists or a consequence will occur in the ordinary course of events”.
529. The cumulative reference to “intent” and “knowledge” requires the existence of a volitional element on the part of the suspect. This volitional element encompasses, first and foremost, those situations in which the suspect: (i) knows that his or her actions or omissions will bring about the objective elements of the crime; and (ii) undertakes such actions or omissions with the express intent to bring about the objective elements of the crime (also known as dolus directus of the first degree).
530. The above-mentioned volitional element also encompasses another form of the concept of dolus which has been explained by the jurisprudence of this Chamber, relied on by the jurisprudence of the ad hoc tribunals and commonly accepted in the legal literature. This form of dolus concerns those situations in which although the suspect does not have the intent to bring about the objective elements of the crime, he is nonetheless “aware that it (the consequence) will occur in the ordinary course of events” (also known as dolus directus of the second degree), as expressed in article 30(2)(b), second part, of the Statute.
532. As provided for in article 30(1) of the Statute, the general subjective element (“intent and knowledge”) therein contemplated applies to any crime within the jurisdiction of the Court “[u]nless otherwise provided”. In other words, intent and knowledge apply as long as the definition of the relevant crime does not expressly contain a different subjective element. The Chamber has specifically highlighted, within the material elements of the crimes, the existence and scope of the special subjective elements involved in the present Decision.
b. The suspects must be mutually aware and mutually accept that implementing their common plan will result in the realisation of the objective elements of the crimes
533. The Chamber finds that the co-perpetration of a crime requires that both suspects: (a) are mutually aware that implementing their common plan will result in the realisation of the objective elements of the crime; (b) undertake such activities with the specific intent to bring about the objective elements of the crime, or are aware that the realisation of the objective elements will be a consequence of their acts in the ordinary course of events.
534. The Chamber finds that the co-perpetration of a crime through another person, additionally to the two above mentioned requirements, requires a third subjective element: that the suspects are aware of the factual circumstances enabling them to exercise control over the crime through another person. Regarding this last requirement, the suspects must be aware of the character of their organisations, their authority within the organisation, and the factual circumstances enabling near-automatic compliance with their orders.
537. Co-perpetration or joint commission through another person is nonetheless not possible if the suspects behaved without the concrete intent to bring about the objective elements of the crime and if there is a low and unaccepted probability that such would be a result of their activities.
c. The suspects must be aware of the factual circumstances enabling them to control the crimes jointly
538. The third and final subjective element of the joint commission of a crime through another person is the suspects’ awareness of the factual circumstances enabling them to exercise joint control over the crime or joint control over the commission of the crime through another person.
539. This requires that each suspect was aware: (i) of his essential role in the implementation of the common plan; (ii) of his ability – by reason of the essential nature of his task – to frustrate the implementation of the common plan, and hence the commission of the crime, by refusing to activate the mechanisms that would lead almost automatically to the commission of the crimes. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 527–530, 532–534 and 537–539.
[footnotes in original omitted]
In 2012, the ICC Trial Chamber II acquitted Mr Ngudjolo Chui of all the charges against him. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, Disposition.
International Criminal Court
In the Bemba case before the ICC, the accused, the alleged President and Commander-in-chief of the Movement for the Liberation of Congo (MLC), was charged, inter alia, with murder, rape and torture as war crimes and as crimes against humanity, pursuant to Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2009, the Pre-Trial Chamber considered the concept of individual criminal responsibility, stating:
346. According to article 25(3)(a) of the [1998 ICC] Statute, “[…] a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”.
347. The Chamber takes note of the Lubanga decision where Pre-Trial Chamber I found that the concept of co-perpetration enshrined in article 25(3) (a) of the Statute and reflected in the words “[committing] jointly with another” must go together with the notion of “control over the crime”. [ICC, Lubanga case, Decision on the confirmation of charges, § 326–341]
348. In the present case, the Chamber finds no reason to deviate from the approach and line of reasoning embraced by Pre-Trial Chamber I, as it is consistent with the letter and spirit of article 25(3) of the Statute. Accordingly, the Chamber considers that a determination on the criminal responsibility of a person within the meaning of article 25(3) (a) of the Statute concerning co-perpetrators or indirect perpetrators should be examined in light of the concept of “control over the crime”.
349. The Chamber wishes to point out that the concept of co-perpetration or joint commission based on joint control over the crime … encompasses objective as well as subjective elements. Thus, in order to hold [the accused] criminally responsible as a “co-perpetrator” under the notion of control over the crime within the meaning of article 25(3)(a) of the Statute, the Chamber must be satisfied, on the basis of the evidence submitted, that both elements are fulfilled.
350. In the view of the Chamber, criminal responsibility under the concept of co-perpetration requires the proof of two objective elements: (i) the suspect must be part of a common plan or an agreement with one or more persons; and (ii) the suspect and the other co-perpetrator must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 346–350.
The Pre-Trial Chamber then set out the subjective elements required for individual criminal responsible under the 1998 ICC Statute, stating:
351. … [I]n order to hold a person criminally responsible for crimes against humanity and war crimes, it is not sufficient that the objective elements are met. In this respect, the Statute does not permit attribution of criminal responsibility on the basis of strict liability. Rather, it requires also the existence of a certain state of guilty mind (actus non facit reum nisi mens rea) – commonly known as the mens rea. The latter is reflected in what may be defined as the subjective elements. In the present context, there are three cumulative subjective elements that must be satisfied alongside the objective elements in order to make a finding on the suspect’s criminal responsibility as a co-perpetrator within the framework of the evidentiary standard required at the pre-trial stage as provided for in article 61(7) of the Statute. In particular, the suspect must (a) fulfil the subjective elements of the crimes charged, namely intent and knowledge as required under article 30 of the Statute; (b) be aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes; and (c) be aware of the factual circumstances enabling him to control the crimes jointly with the other co-perpetrator.
a) Notion of intent and knowledge of the perpetrator under article 30 of the Statute
352. The Chamber recalls article 30 of the Statute which stipulates:
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material [objective] elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.
353. The Chamber recalls that article 30 of the Statute codifies the general mental (subjective) element required for the crimes that fall within the jurisdiction of the Court. It defines the requisite state of mind for establishing the suspect’s criminal responsibility for any of the crimes set out in articles 6 to 8 of the Statute. The express language of its first paragraph denotes that the provision is meant to function as a default rule for all crimes within the jurisdiction of the Court, “unless otherwise provided”. Consequently, it must be established that the material elements of the respective crime were committed with “intent and knowledge”, unless the Statute or the [2000 ICC] Elements of Crimes require a different standard of fault. This conclusion finds support in paragraph 2 of the General Introduction to the Elements of Crimes which reads: “[w]here no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element […] intent, knowledge or both, set out in article 30, applies”.
354. For instance, the application of the “should have known” standard pursuant to article 28(a) of the Statute justifies a deviation from the default rule as it requires a lower fault element than that required under article 30 of the Statute. Moreover, there are certain crimes that are committed with a specific purpose or intent, and thus, requiring that the suspect not only fulfil their subjective elements, but also an additional one – known as specific intent or dolus specialis.
355. In the opinion of the Chamber, article 30(2) and (3) of the Statute is constructed on the basis of an element analysis approach – as opposed to a crime analysis approach, according to which different degrees of mental element are assigned to each of the material elements of the specific crime under consideration.
356. The Chamber recalls that, according to article 30 of the Statute, the general mental element of a crime is fulfilled (a) where the suspect means to engage in the particular conduct with the will (intent) of causing the desired consequence, or is at least aware that a consequence (undesired) “will occur in the ordinary course of events” (article 30(2) of the Statute); and (b) where the suspect is aware “that a circumstance exists or a consequence will occur in the ordinary course of events” (article 30(3) of the Statute).
357. The Chamber stresses that the terms “intent” and “knowledge” as referred to in article 30(2) and (3) of the Statute reflect the concept of dolus, which requires the existence of a volitional as well as a cognitive element. Generally, dolus can take one of three forms depending on the strength of the volitional element vis-à-vis the cognitive element – namely, (1) dolus directus in the first degree or direct intent, (2) dolus directus in the second degree – also known as oblique intention, and (3) dolus eventualis – commonly referred to as subjective or advertent recklessness.
358. In the view of the Chamber, article 30(2) and (3) of the Statute embraces two degrees of dolus. Dolus directus in the first degree (direct intent) requires that the suspect knows that his or her acts or omissions will bring about the material elements of the crime and carries out these acts or omissions with the purposeful will (intent) or desire to bring about those material elements of the crime. According to the dolus directus in the first degree, the volitional element is prevalent as the suspect purposefully wills or desires to attain the prohibited result.
359. Dolus directus in the second degree does not require that the suspect has the actual intent or will to bring about the material elements of the crime, but that he or she is aware that those elements will be the almost inevitable outcome of his acts or omissions, i.e., the suspect “is aware that […] [the consequence] will occur in the ordinary course of events” (article 30(2)(b) of the Statute). [ICC, Lubanga case, Decision on the confirmation of charges, § 351] In this context, the volitional element decreases substantially and is overridden by the cognitive element, i.e. the awareness that his or her acts or omissions “will” cause the undesired proscribed consequence.
360. With respect to dolus eventualis as the third form of dolus, recklessness or any lower form of culpability, the Chamber is of the view that such concepts are not captured by article 30 of the Statute. This conclusion is supported by the express language of the phrase “will occur in the ordinary course of events”, which does not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention). The Chamber bases this finding on the following considerations.
361. The Statute, being a multilateral treaty, is governed by the principles of treaty interpretation set out in articles 31 and 32 of the [1969] Vienna Convention on the Law of Treaties (“VCLT”).
362. Thus, the Chamber considers that, by way of a literal (textual) interpretation, the words “[a consequence] will occur” serve as an expression for an event that is “inevitably” expected. Nonetheless, the words “will occur”, read together with the phrase “in the ordinary course of events”, clearly indicate that the required standard of occurrence is close to certainty. In this regard, the Chamber defines this standard as “virtual certainty” or “practical certainty”, namely that the consequence will follow, barring an unforeseen or unexpected intervention that prevent its occurrence.
363. This standard is undoubtedly higher than the principal standard commonly agreed upon for dolus eventualis – namely, foreseeing the occurrence of the undesired consequences as a mere likelihood or possibility. Hence, had the drafters of the Statute intended to include dolus eventualis in the text of article 30, they could have used the words “may occur” or “might occur in the ordinary course of events” to convey mere eventuality or possibility, rather than near inevitability or virtual certainty.
364. The Chamber’s interpretation is also confirmed by way of review of the travaux préparatoires of the Statute. The Chamber notes that according to article 32 of the VCLT “[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31[…]”. Thus, in order to confirm its finding reached on the basis of a textual interpretation of article 30(2)(b) of the Statute, the Chamber will look to the travaux préparatoires.
365. The Chamber examined carefully the travaux préparatoires and found that the first reference to the different degrees of culpability including dolus eventualis and recklessness appeared in an annex appended to the report of the 1995 Ad hoc Committee as concepts subject to considerations in future sessions. These concepts appeared once more in a compilation of proposals prepared by the Preparatory Committee in 1996. Article H, which covered the issue of mens rea stated:
[…] 2. For the purposes of this Statute and unless otherwise provided, a person has intent where: […] (b) in relation to consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3.[…]
[4. For the purposes of this Statute and unless otherwise provided, where this Statute provides that a crime may be committed recklessly, a person is reckless with respect to a circumstance or a consequence if: […]
Note. The concepts of recklessness and dolus eventualis should be further considered in view of the seriousness of the crimes considered. Therefore, paragraph 4 would provide a definition of “recklessness”, to be used only where the Statute explicitly provides that a specific crime or element may be committed recklessly. In all situations, the general rule, as stated in paragraph 1, is that crimes must be committed intentionally and knowingly. It was questioned whether further clarification might be required to the above definitions of the various types and levels of mental elements. It was noted that this could occur either in the General Part, in the provisions defining crimes or in an annex […]].
366. The Chamber observed that although the drafters explicitly stated that the concepts of “recklessness and dolus eventualis should be further considered”, the reference to dolus eventualis disappeared altogether from subsequent draft proposals and there is no record that such concept was meant to be included in article 30 of the Statute. This observation suggests that the idea of including dolus eventualis was abandoned at an early stage of the negotiations. As to advertent recklessness, which is viewed as the common law counterpart of dolus eventualis, there was a paragraph on this concept that remained throughout the negotiations, until it was finally deleted by the Working Group on General Principles of Criminal Law in Rome.
367. Thus, even assuming that the drafters made no further reference to dolus eventualis as it had been part of the discussion on recklessness, the fact that the draft provision was deleted in Rome makes it even more obvious that both concepts were not meant to be captured by article 30 of the Statute.
368. The Chamber’s conclusion finds further support in the draft proposal of article H quoted above. It is apparent that paragraph 2(b) of the said proposal, which states that a person has intent in relation to consequence where “that person means to cause that consequence or is aware that it will occur in the ordinary course of events”, is identical to the current wording of article 30(2) (b) of the Statute. This suggests that the language of article H(2), (b) with its high required standard was not controversial from the beginning of the negotiations until it found its way in the final text of article 30(2)(b). This conclusion is further supported by the fact that the proposed text of article H(2), (b) initially appeared and remained throughout the drafting process without square brackets. Moreover, the fact that paragraph 4 on recklessness and its accompanying footnote, which stated that “recklessness and dolus eventualis should be further considered”, came right after paragraph 2(b) in the same proposal, indicates that recklessness and dolus eventualis on the one hand, and the phrase “will occur in the ordinary course of events” on the other, were not meant to be the same notion or to set the same standard of culpability.
369. Consequently, the Chamber considers that the suspect could not be said to have intended to commit any of the crimes charged, unless the evidence shows that he was at least aware that, in the ordinary course of events, the occurrence of such crimes was a virtually certain consequence of the implementation of the common plan. The Chamber’s finding that the text of article 30 of the Statute does not encompass dolus eventualis, recklessness or any lower form of culpability aims to ensure that any interpretation given to the definition of crimes is in harmony with the rule of strict construction set out in article 22(2) of the Statute. It also ensures that the Chamber is not substituting the concept of de lege lata with the concept of de lege ferenda only for the sake of widening the scope of article 30 of the Statute and capturing a broader range of perpetrators.
b) The co-perpetrator’s awareness and acceptance that implementing the common plan will result in the fulfillment of the material elements of the crimes
370. The second subjective element that needs to be satisfied under the theory of co-perpetration is the (1) co-perpetrators’ mutual awareness that implementing the common plan will result in the fulfillment of the material elements of the crimes; and yet (2) they carry out their actions with the purposeful will (intent) to bring about the material elements of the crimes, or are aware that in the ordinary course of events, the fulfillment of the material elements will be a virtually certain consequence of their actions.
c) The suspect’s awareness of the factual circumstances enabling him or her to control the crime with the other co-perpetrator
371. The final subjective element that must be met under the theory of co-perpetration based on control over the crime is the suspect’s awareness of the factual circumstances enabling him or her to control the crime with the other co-perpetrator. This criterion requires [he] be aware of his essential role in the implementation of the crime; and (2) due to such essential role, to be capable of frustrating its implementation and accordingly the commission of the crime. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 351–371.
[footnotes in original omitted; emphasis in original]
International Criminal Court
In its decision on the confirmation of charges in the Banda and Jerbo case in 2011, the ICC Pre-Trial Chamber I stated on the notion of attempt:
95. On the basis of the evidence, the Chamber is satisfied that there are substantial grounds to believe that the relevant eight AMIS personnel in question did indeed sustain serious injuries during and in the context of the attack. For the Chamber to be satisfied that those injuries constitute the crime of attempted murder, it must determine that there are substantial grounds to believe that those injuries qualify as such under articles 8(2)(c)(i) and 25(3)(f) [of the 1998 ICC Statute]. The Chamber notes that article 25 sets out various modes of individual criminal responsibility. However, the Chamber recalls the ruling made in the Katanga case that “the attempt to commit a crime is a crime.” The Chamber will thus examine the allegations made under article 25(3)(f) of the Statute in the context of crimes charged under Count 1.
96. The first sentence of article 25(3)(f) of the Statute provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person “attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions”. It is therefore of critical importance, in considering whether a crime can be characterised as attempted (or “inchoate”) to determine whether the perpetrator’s conduct was adequate to bring about as a consequence the crime in question. Such adequacy requires that, in the ordinary course of events, the perpetrator’s conduct will have resulted in the crime being completed, had circumstances outside the perpetrator’s control not intervened.
97. The attempted commission of a crime requires that the perpetrator’s conduct reaches a more definite and concrete stage going beyond mere preparatory acts. This is apparent from the drafters’ choice of the term “substantial step” as a fundamental requirement for an attempt to occur as provided for in article 25(3)(f) of the Statute.
106. As regards the subjective element of the attempted murders, as this Chamber has previously stated elsewhere, “the attempt to commit a crime is a crime in which the objective elements are incomplete, while the subjective elements are complete”. Therefore, no distinction will be made in the assessment of the subjective elements in relation to murders, whether attempted or completed. 
ICC, Banda and Jerbo case, Decision on the Confirmation of Charges, 7 March 2011, §§ 95–97 and 106.
[footnotes in original omitted]
Regarding co-perpetration, the Pre-Trial Chamber noted:
B. Concept and elements of co-perpetration
126. The Chamber reaffirms the concept of co-perpetration based on the notion of joint control over the crime, as defined in the Lubanga case in the following terms:
[t]he concept of co-perpetration is originally rooted in the idea that when the sum of the co-ordinated individual contributions of a plurality of persons results in the realisation of all the objective elements of a crime, any person making a contribution can be held vicariously responsible for the contributions of all the others and, as a result, can be considered as a principal to the whole crime.
[t]he concept of co-perpetration based on joint control over the crime is rooted in the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task.
127. As consistently held in the jurisprudence of the Court, the concept of co-perpetration or joint commission of crimes encompasses both objective and subjective elements. On the basis of the evidence submitted by the Prosecutor in support of each charge, the Chamber may only confirm the charges brought against the suspects in the DCC [Decision on the Confirmation of Charges] as co-perpetrators if both the objective and the subjective elements of co-perpetration, attain the threshold of substantial grounds to believe required by article 61 of the Statute.
1. Objective Elements
128. In the view of the Chamber, the objective requirements of co-perpetration based on joint control over the crime are the following: (a) the suspect must be part of a common plan or an agreement with one or more persons; and (b) the suspect and the other co-perpetrator(s) must carry out essential contributions in a coordinated manner which results in the fulfilment of the material elements of the crime.
(a) the suspects must be part of a common plan or agreement with one or more persons
129. The first objective requirement of co-perpetration based on joint control over the crime is the existence of an agreement or common plan between two or more persons who physically carry out the elements of the crime. The common plan must include an element of criminality. Such a plan does not need to be explicit as its existence can be inferred from the subsequent concerted action of the co-perpetrators.
(b) the suspect and the other co-perpetrator must carry out essential contributions in a coordinated manner which results in the fulfilment of the material elements of the crime
136. The second objective requirement of co-perpetration based on joint control over the crime is that the co-ordinated essential contributions made by each co-perpetrator must result in the realisation of the objective elements of the crime. When the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned can be said to have joint control over the crime. Those who have taken part in the commission of a crime by performing tasks which are not essential to the offence cannot be considered as having “committed” the crime. A person has been assigned an essential task if he or she has the power to frustrate the commission of the crime, in the way it was committed, by not performing his or her tasks.
2. Subjective Elements
150. In the view of the Chamber, the subjective requirements of co-perpetration are the following: (a) the suspect must fulfil the subjective elements of the crimes charged; (b) the suspect and the other co-perpetrators must be mutually aware and mutually accept that implementing the common plan will result in the fulfilment of the objective elements of the crimes; and (c) the suspect must be aware of the factual circumstances enabling him or her to jointly control the crimes.
(a) the suspect must fulfil the subjective elements of the crimes charged
151. Co-perpetration based on joint control over the crime requires above all that the suspects fulfil the subjective elements of the crime with which they are being charged, including any required dolus specialis or ulterior intent for the type of crime involved.
152. Article 30 of the Statute sets out the general subjective element for all the crimes within the jurisdiction of the Court, stipulating that “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.”
153. Article 30 specifically defines both elements, intent and knowledge: “a person has intent where: (a) in relation to a conduct, that person means to engage in the conduct; and (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” Knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. Article 30, therefore, encompasses those situations in which the suspect knows that his or her conduct will cause a consequence and consciously carries out the conduct with the intent to bring about that consequence. It also implies situations in which the suspect means to engage in the conduct without the intent to bring about a consequence, but is aware that such a consequence will occur in the ordinary course of events.
(b) the suspect and the other co-perpetrators must be mutually aware and mutually accept that implementing the common plan will result in the fulfilment of the objective elements of the crimes
159. Turning to the second subjective element required to establish responsibility as a co-perpetrator, the Chamber again recalls its findings regarding the participation of Abdallah Banda and Saleh Jerbo in the meeting at which the attack on the MGS Haskanita was decided and planned, and their leadership and participation in the attack together with other commanders and troops. In view of these findings and the foregoing discussion of the subjective elements of the crimes committed in the course of the attack, the Chamber is satisfied that there is sufficient evidence to establish substantial grounds to believe that Abdallah Banda and Saleh Jerbo were mutually aware that the implementation of the common plan would result (with respect to murder in the ordinary course of events) in the realisation of the objective elements of the crimes charged by the Prosecutor.
(c) the suspect must be aware of the factual circumstances enabling him or her to jointly control the crimes
160. Finally, the Chamber considers that the concept of co-perpetration based on joint control of the crimes requires the awareness by the suspects of the factual circumstances enabling them to jointly control the crime. In particular, it is required that each of the suspects be aware that: (a) his or her role is essential to the implementation of the common plan; and (b) he or she can – by reason of the essential nature of his or her task(s) – frustrate the implementation of the common plan in the way the crime is committed, by refusing to perform the task(s) assigned to him or her. 
ICC, Banda and Jerbo case, Decision on the Confirmation of Charges, 7 March 2011, §§ 126–129, 136, 150–153 and 159–160.
[footnotes in original omitted]
The charges against Mr Banda and Mr Jerbo related to alleged war crimes. The Pre-Trial Chamber confirmed the charges. 
ICC, Banda and Jerbo case, Decision on the Confirmation of Charges, 7 March 2011, § 164.
By decision of ICC Trial Chamber IV of 4 October 2013, proceedings against Mr Jerbo were terminated because of evidence pointing towards his death. 
ICC, Banda and Jerbo case, Decision Terminating the Proceedings against Mr Jerbo, 4 October 2013.
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated regarding Article 25(3)(d) of the 1998 ICC Statute:
269. The Chamber has previously articulated that liability under article 25(3)(d) of the Statute (“25(3)(d) liability”) entails three objective and two subjective requirements. The law corresponding to these requirements will be discussed below.
(a) Objective Elements
i. a crime within the jurisdiction of the Court is attempted or committed
ii. the commission or attempted commission of such a crime was carried out by a group of persons acting with a common purpose
271. When discussing “a group of persons acting with a common purpose”, the Chamber sees no reason to depart from the past definition of an “agreement or common plan between two or more persons” adopted by this Chamber when discussing article 25(3)(a) of the Statute. Though it appears in a discussion of co-perpetration liability, the Lubanga Confirmation Decision’s concept of a “common plan” is functionally identical to the statutory requirement of article 25(3)(d) of the Statute that there be a “group of persons acting with a common purpose”. A common purpose must include an element of criminality, but does not need to be specifically directed at the commission of a crime. The agreement need not be explicit, and its existence can be inferred from the subsequent concerted action of the group of persons.
272. At the hearing, the Defence argued that 25(3)(d) liability applies only to persons outside of the group acting with a common purpose. However, the Chamber notes that article 25(3)(d) of the Statute only refers to contributing to a crime committed by a group of persons without specifying that such contribution should be made by a member of that group or an outsider.
273. The Defence cites the position of the late Professor Cassese that 25(3)(d) liability should apply only to non-group members, but the Chamber notes that, in the authority referred to by the Defence, Professor Cassese also argued for a broad understanding of the language “commits such a crime […] jointly with another” contained in article 25(3)(a) of the Statute. In particular, he believed that this language also covered joint criminal enterprise (“JCE”) liability. Though Professor Cassese’s view as to the level of contribution required for JCE liability may not have been uniform, the source quoted by the Defence concludes that non-essential contributions to a JCE could give rise to responsibility. To adopt an essential contribution test for liability under article 25(3)(a) of the Statute, as this Chamber has done, and accept the Defence argument that 25(3)(d) liability is limited only to non-group members would restrict criminal responsibility for group members making non-essential contributions in ways not intended by the Defence’s primary supporting authority.
274. Furthermore, the Defence argument, if accepted, would create results at odds with common sense in circumstances where persons who lack the intent to commit any crimes themselves contribute to group crimes with knowledge of the group’s intention to commit those crimes. The Chamber notes that, unlike the jurisprudence of the ad hoc tribunals, article 25(3)(c) of the Statute requires that the person act with the purpose to facilitate the crime; knowledge is not enough for responsibility under this article. Unless the requisite superior-subordinate relationship exists to charge responsibility under article 28 of the Statute, 25(3)(d) liability is the only other way a person can be held criminally responsible for acting merely with knowledge of the criminal intentions of others. Therefore, if command responsibility does not apply and 25(3)(d) liability were limited only to persons outside the group, all such persons who knowingly make non-essential contributions to crimes could be convicted if they are outside the group, but could not be convicted when making identical contributions from inside the group. Such an outcome would create results which run contrary to any literal, systematic or teleological interpretation of the principles established in the Statute for individual criminal responsibility.
275. For these reasons, the Chamber finds that the correct interpretation of 25(3)(d) liability is that it must apply irrespective of whether the person is or is not a member of the group acting with a common purpose.
iii. the individual contributed to the crime in any way other than those set out in Article 25(3)(a) to (c) of the Statute
Level of contribution
276. The Chamber considers it important to examine what level of contribution is required for 25(3)(d) liability and how to evaluate it. The Chamber first considers that it would be inappropriate for such liability to be incurred through any contribution to a group crime. The Chamber notes that, during the process of drafting the Statute, earlier language of what became article 17(l)(d) of the Statute, setting out, inter alia, the criteria of admissibility and requiring that the “crime” in question should be of sufficient gravity, gave way to the current formulation which requires the “case” to be of sufficient gravity. This change clarifies the drafter’s intention that not only crimes, but also contributions to crimes need to reach a certain threshold of significance in order to be within the Court’s ambit.
277. Indeed, such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed. For these reasons, the Chamber considers that 25(3)(d) liability would become overextended if any contribution were sufficient.
278. The Chamber also recalls that article 25(3)(d) of the Statute provides for a residual form of accessorial liability, encapsulating contributions to crimes that cannot be characterised under article 25(3)(a)–(c) of the Statute. The Chamber is of the view that this fact has a bearing on the required level of contribution under article 25(3)(d) of the Statute. It is also to be noted that article 25(3)(d) of the Statute is aimed at combating group criminality, which usually involves the commission of comparably more serious crimes. This factor may also have a bearing on the required level of contribution.
279. It has been argued that the modes of liability listed in article 25(3) of the Statute are arranged in accordance with “a value oriented hierarchy of participation in a crime under international law”, where the control over the crime decreases as one moves down the sub-paragraphs. Such an interpretation of the Statute would support the view that article 25(3)(d)’s contributions “[i]n any other way” must be less than that required for liability under article 25(3)(a)–(c). Indeed, this Chamber has already found that the level of contribution under article 25(3)(d) of the Statute cannot be as high as that required under article 25(3)(a), since the latter requires an essential contribution. While there is little jurisprudence at this time interpreting articles 25(3)(b) or (c) of the Statute, the application of analogous modes of liability at the ad hoc tribunals suggests that a substantial contribution to the crime may be contemplated.
280. The ad hoc tribunal jurisprudence can be of assistance in defining contributions “in any other way”. In particular, the Chamber notes that the current formulation of JCE liability at the ad hoc tribunals only requires a significant contribution to give rise to liability; the contribution need not be substantial as a matter of law.
281. The Chamber emphasises that the principles set out by the ad hoc tribunals with respect to the analogous modes of liability cannot be applied to the modes of liability set out in article 25(3) without modification, as there are a number of differences between those modes of liability and those set out in the Statute. For instance, as mentioned earlier, the jurisprudence of the ad hoc tribunals does not require the aider and abettor to share the intent of the perpetrator to commit the crime, whereas under article 25(3)(c) of the Statute the aider and abettor must act with the purpose of facilitating the commission of that crime. There is also scholarly disagreement as to whether the actus reus required should likewise differ from the ad hoc tribunals’ “substantial contribution” requirement.
282. JCE and 25(3)(d) liability are also not identical, as similar as they may appear. Some relevant differences between JCE and 25(3)(d) liability include: (i) whether a defendant who is found guilty is convicted as a principal or accessory, (ii) whether a defendant must be in the group acting with the common purpose or not, (iii) whether the contribution is to the common purpose or to the crimes committed, and (iv) whether some form of intent or mere knowledge is sufficient for responsibility. However, both 25(3)(d) liability and JCE emphasise group criminality and actions performed in accordance with a common plan, which, when coupled with the fact that JCE requires a lower threshold of contribution than aiding and abetting at the ad hoc tribunals, makes the modern formulation of JCE’s concept of a “significant contribution” relevant to the present discussion.
283. In view of the foregoing considerations, the Chamber finds that the contribution to the commission of a crime under article 25(3)(d) of the Statute cannot be just any contribution and that there is a threshold of significance below which responsibility under this provision does not arise. On the other hand, given the “residual” nature of article 25(3)(d) and its focus on group criminality, the Chamber finds that a contribution to the commission of a crime by a group acting with a common purpose be at least significant.
284. As for which contributions are significant, the Chamber concludes that this requires a case-by-case assessment, as it is only by examining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed. Guided by leading scholars and past international cases as to why defendants have been convicted as principals, convicted as accessories or acquitted altogether, the Chamber considers that several factors are useful to help assess whether the suspect’s relevant conduct amounts to a significant contribution: (i) the sustained nature of the participation after acquiring knowledge of the criminality of the group’s common purpose, (ii) any efforts made to prevent criminal activity or to impede the efficient functioning of the group’s crimes, (iii) whether the person creates or merely executes the criminal plan, (iv) the position of the suspect in the group or relative to the group and (v) perhaps most importantly, the role the suspect played vis-à-vis the seriousness and scope of the crimes committed. These factors are not a substitute for assessing the suspect’s contribution to a crime, but they can assist in the assessment.
285. For the reasons above, the Chamber finds that, in order to be criminally responsible under article 25(3)(d) of the Statute, a person must make a significant contribution to the crimes committed or attempted. The extent of the person’s contribution is determined by considering the person’s relevant conduct and the context in which this conduct is performed.
Contributions after the fact
286. Because so much of the Suspect’s alleged assistance is tied into covering up crimes already committed, it also becomes important to assess whether 25(3)(d) liability allows for contributions to crimes after they have occurred. The Chamber notes that some of the pre-Rome Conference drafting history of the Statute, made in the context of discussing what ultimately became article 25(3)(c) of the Statute, shows that the drafters were cautious about including ex post facto aiding and abetting in the ICC legal scheme and believed that a specific provision would be necessary to criminalise such conduct (“Preparatory Commission Comment”). No such explicit provision was incorporated into the final Statute and scholars disagree as to what the silence ultimately means on this point. The Chamber, however, notes that these considerations are not necessarily relevant to the mode of liability set out in article 25(3)(d) of the Statute. The Preparatory Commission Comment only relates to what became article 25(3)(c) of the Statute and it pre-dates the inclusion of the language which ultimately became article 25(3)(d) of the Statute. Further, article 25(3)(d) of the Statute includes contributions to crimes “in any other way” not defined in article 25(3)(a)–(c) of the Statute, meaning that, even if it were to be accepted that ex post facto assistance was deliberately excluded from the ambit of article 25(3)(c) of the Statute, such an assumption would not preclude such assistance from constituting a contribution under article 25(3)(d) of the Statute. The Chamber also notes that the potential for finding people criminally responsible for ex post facto contributions to international crimes, at least when such contribution was given pursuant to a prior agreement between the principal and accomplice, has been recognised by the International Law Commission and case law from the Nuremberg era and the ad hoc tribunals.
287. For these reasons, the Chamber finds that 25(3)(d) liability can include contributing to a crime’s commission after it has occurred, so long as this contribution had been agreed upon by the relevant group acting with a common purpose and the suspect prior to the perpetration of the crime.
(b) Subjective Elements
i. the contribution shall be intentional
288. The definition of “intent” is given in article 30 of the Statute, and the Chamber deems it appropriate to use this definition when determining what is an “intentional contribution” for 25(3)(d) liability. Intentional conduct is defined in article 30(2)(a) of the Statute such that a person must “mean” to engage in the conduct. The Chamber, however, notes that the application of this requirement alone may lead to the imposition of criminal liability on persons whose intentional actions have an unintended, significant effect on a group that is acting with a common purpose. The Chamber is thus of the view that the “intentionality” of the contribution must include an additional element, linking the contribution with the crimes alleged. Such an element should not, however, overlap with either of the two prongs set out in article 25(3)(d)(i) and (ii), as this would make one or both of them redundant. The Chamber therefore finds that, in order for a person to incur 25(3)(d) liability, the person must both: (i) mean to engage in the relevant conduct that allegedly contributes to the crime and (ii) be at least aware that his or her conduct contributes to the activities of the group of persons for whose crimes he or she is alleged to bear responsibility.
ii. shall either (a) be made with the aim of furthering the criminal activity or criminal purpose of the group; or (b) in the knowledge of the intention of the group to commit the crime
289. The Chamber points out that this element is disjunctive. Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged. This stands in sharp contrast with liability under article 25(3)(a) of the Statute, where the suspect must meet the subjective elements of the crimes charged. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, §§ 269 and 271–289.
[emphasis in original; footnotes in original omitted]
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Court
In its judgment in the Lubanga case in 2012, the ICC Trial Chamber I stated regarding liability as a co-perpetrator:
XI. Individual criminal responsibility of Thomas Lubanga (Article 25(3)(a) of the [1998 ICC] Statute)
A. The Law
1. The Mode of Liability Charged
917. The prosecution charged Thomas Lubanga as a co-perpetrator under Article 25(3)(a) of the Statute, and the Pre-Trial Chamber confirmed the charges on this basis.
5. Analysis
a) The Objective Requirements
976. In the view of the Majority, both the Romano Germanic and the Common Law legal systems have developed principles about modes of liability. However, at their inception, neither of these systems was intended to deal with the crimes under the jurisdiction of this Court, i.e. the most serious crimes of concern to the international community as a whole. The Statute sets out the modes of liability in Articles 25 and 28 and, they should be interpreted in a way that allows properly expressing and addressing the responsibility for these crimes.
977. Articles 25(3)(a) to (d) establish the modes of individual criminal responsibility under the Statute, other than the “[r]esponsibility of commanders and other superiors”, which is addressed in Article 28. Under Article 25(3)(a), an individual can be convicted of committing a crime: (i) individually; (ii) jointly with another; or (iii) through another person. Under Articles 25(3)(b) to (d), an individual can be convicted of: (i) ordering, soliciting or inducing a crime; (ii) acting as an accessory to a crime; or (iii) contributing to a crime committed by a group acting with a common purpose.
978. The Pre-Trial Chamber decided, pursuant to Article 61(7) of the Statute, there was sufficient evidence to establish substantial grounds to believe that Mr Lubanga committed the crimes charged, under Article 25(3)(a), as a direct co-perpetrator. The Chamber will limit its analysis of Mr Lubanga’s responsibility to this mode of liability.
979. In considering the scope of liability under Article 25(3)(a) of the Rome Statute, the Chamber notes, as set out above, that the Appeals Chamber has stated that the provisions of the Statute are to be interpreted in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties. Hence, the relevant elements of Article 25(3)(a) of the Statute, that the individual “commits such a crime […] jointly with another […] person”, must be interpreted in good faith in accordance with the ordinary meaning to be given to the language of the Statute, bearing in mind the relevant context and in light of its object and purpose.
(1) The Common Plan or Agreement
980. Article 25(3)(a) stipulates that a crime can be committed not only by an individual acting by himself or through another person, but also by an individual who acts jointly with another. To establish liability as a co-perpetrator under Article 25(3)(a), it is necessary there are at least two individuals involved in the commission of the crime. This is evident from the use of terms “jointly with another” in Article 25(3)(a).
981. As the Pre-Trial Chamber concluded, co-perpetration requires the existence of an agreement or common plan between the co-perpetrators. This provides for a sufficient connection between the individuals who together commit the crime and it allows responsibility to be established on a “joint” basis.
982. As set out above, the Pre-Trial Chamber decided that the plan “must include ‘an element of criminality’, although it does not need to be specifically directed at the commission of a crime.” In the Confirmation Decision, it was held to be sufficient:
(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or
(ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a non- criminal goal) will result in the commission of the crime, and (b) accept such outcome.
983. While the prosecution supports this interpretation, the defence argues that in order to establish criminal liability on the basis of co-perpetration, the common plan must be intrinsically criminal. It is argued that participation in a plan which “in itself is not criminal but merely capable of creating conditions conducive to the commission of criminal acts cannot be regarded as characterising the actus reus of criminal co-perpetration”. Therefore, it is suggested “mere knowledge ‘of the risk that implementing the common plan will result in the commission of the crime’ is insufficient to engage criminal responsibility by way of co-perpetration.”
984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed.
985. In order to establish the statutory scope of this first objective requirement, the Majority of the Chamber finds guidance in the manner that the plan is mirrored in the mental element. A combined reading of Articles 25(3)(a) and 30 leads to the conclusion that committing the crime in question does not need to be the overarching goal of the co-perpetrators.
986. The conscription, enlistment and use of children under the age of 15 and using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of the common plan. Under Article 30(2)(b), intent is established if the person is aware that a consequence will occur in the ordinary course of events. Similarly, Article 30(3) provides that “knowledge” of a consequence means awareness that it (the consequence) “will occur in the ordinary course of events”. Hence, in the view of the Majority, the mental requirement that the common plan included the commission of a crime will be satisfied if the co-perpetrators knew that, in the ordinary course of events, implementing the plan will lead to that result. “Knowledge”, defined as awareness by the co-perpetrators that a consequence will occur (in the future), necessarily means that the co-perpetrators are aware of the risk that the consequence, prospectively, will occur.
987. The Majority of the Chamber concludes that as to the objective part of this requirement, this means that the agreement on a common plan leads to co-perpetration if its implementation embodies a sufficient risk that, in the ordinary course of events, a crime will be committed.
988. Furthermore, co-perpetration does not require that the agreement or the common plan is explicit in order for the individual conduct of each co-perpetrator to be connected. Finally, although direct evidence of the plan is likely to assist in demonstrating its existence, this is not a legal requirement. The agreement can be inferred from circumstantial evidence.
(2) The Essential Contribution
989. The Pre-Trial Chamber concluded that the contribution of the alleged co-perpetrator must be “essential”. It stated its conclusion as follows:
In the view of the Chamber, when the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned – and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks – can be said to have joint control over the crime.
990. The prosecution submits that co-perpetration requires that the accused has “functional control” over the crime:
This means that, when conceiving the common plan, the Accused must have been assigned a role that was central to the implementation of the common plan, in the sense that the common plan would not have been carried out in the manner agreed upon without that role being performed. This concept has been labelled as “functional control”.
991. However, the prosecution qualifies this suggested requirement by submitting that as long as the accused was assigned a central role in the implementation of the plan, it will suffice if in retrospect it appears his or her contribution was substantial, rather than essential. A “substantial” contribution is said to be established when “the crime might still have occurred absent the contribution of the Accused, but not without great difficulty”.
992. The defence contends that a “substantial” contribution is insufficient. It argues the contribution should be conditio sine qua non of the crime and this requirement must be assessed in light of the facts as they actually occurred, rather than assessed on the basis of the “role” assigned to the accused within the framework of a pre-agreed plan.
993. An analysis of the accused’s contribution gives rise to two interrelated questions. The first question is whether it is necessary for the prosecution to establish a connection between the accused’s contribution, taken in isolation, and the crimes that were committed. The second question relates to the nature of the contribution that gives rise to joint responsibility: should it be described as either “more than de minimis”, “substantial” or “essential”?
994. In the view of the Majority of the Chamber, the wording of Article 25(3)(a), namely that the individual “commits such a crime … jointly with another”, requires that the offence be the result of the combined and coordinated contributions of those involved, or at least two of them. None of the participants exercises, individually, control over the crime as a whole but, instead, the control over the crime falls in the hands of a collective as such. Therefore, the prosecution does not need to demonstrate that the contribution of the accused, taken alone, caused the crime; rather, the responsibility of the co-perpetrators for the crimes resulting from the execution of the common plan arises from mutual attribution, based on the joint agreement or common plan.
995. Article 25(3)(a) must be read in the context of the section establishing the modes of liability, in accordance with the Appeals Chamber’s jurisprudence set out above.
996. Both Articles 25(3)(a) and (d) address the situation in which a number of people are involved in a crime. In the judgment of the Majority, the critical distinction between these provisions is that under Article 25(3)(a) the co-perpetrator “commits” the crime, whilst under Article 25(3)(d) the individual “contributes in any other way to the commission” of a crime by a group of individuals acting with a common purpose. The Majority’s view is that a systematic reading of these provisions leads to the conclusion that the contribution of the co-perpetrator who “commits” a crime is necessarily of greater significance than that of an individual who “contributes in any other way to the commission” of a crime.
997. Article 25(3)(c) establishes the liability of accessories – those who aid, abet or otherwise assist in the commission or attempted commission of the crime. In the view of the Majority, principal liability “objectively” requires a greater contribution than accessory liability. If accessories must have had “a substantial effect on the commission of the crime” to be held liable, then co-perpetrators must have had, pursuant to a systematic reading of this provision, more than a substantial effect.
998. The conclusion that principal liability must require more than accessory liability is supported, in the view of the Majority, by the statutory provision on attempt liability (Article 25(3)(f) of the Statute). Only those individuals who attempt “to commit” a crime, as opposed to those who participate in a crime committed by someone else, can be held liable under that provision. The same conclusion is supported by the plain language of Articles 25(3)(b) and (c), which require for secondary liability that the perpetrator at least attempt to commit the crime. As such, secondary liability is dependent on whether the perpetrator acts. Conversely, principal liability, which is closer to the violation of the legal interests protected by the norm, is not the subject of such dependence. Hence, the Majority concludes that this confirms the predominance of principal over secondary liability, which, in turn, supports a notion of principal liability that requires a greater contribution than accessory liability.
999. The Majority is of the view that the contribution of the co-perpetrator must be essential, as has been consistently and invariably established in this Court’s jurisprudence. The Statute differentiates between the responsibility and liability of those persons who commit a crime (at Article 25(3)(a)) and those who are accessories to it (at Articles 25(3)(b) to (d)) … .
1000. The determination as to whether the particular contribution of the accused results in liability as a co-perpetrator is to be based on an analysis of the common plan and the role that was assigned to, or was assumed by the co-perpetrator, according to the division of tasks. In the view of the Majority what is decisive is whether the co-perpetrator performs an essential role in accordance with the common plan, and it is in this sense that his contribution, as it relates to the exercise of the role and functions assigned to him, must be essential.
1001. Furthermore, the co-perpetrator’s role is to be assessed on a case-by-case basis. This assessment involves a flexible approach, undertaken in the context of a broad inquiry into the overall circumstances of a case.
1002. The defence submits that co-perpetration requires “personal and direct participation in the crime itself”, and that the responsibility of those who do not participate directly in the execution of a crime is reflected in Article 25(3)(b) rather than Article 25(3)(a). It contends that Article 25(3)(a) requires direct participation in the crime.
1003. However, the Chamber agrees with the conclusions, firstly, of the Pre-Trial Chamber that criminal liability in this context is “not limited to those who physically carry out the objective elements of the offence, but also include(s) those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed”. Secondly, the Chamber agrees with the prosecution that “[i]t is not necessary that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene”.
1004. Those who commit a crime jointly include, inter alia, those who assist in formulating the relevant strategy or plan, become involved in directing or controlling other participants or determine the roles of those involved in the offence. This conclusion makes it unnecessary for the prosecution to establish a direct or physical link between the accused’s contribution and the commission of the crimes.
1005. Hence, the Chamber is of the view that the accused does not need to be present at the scene of the crime, so long as he exercised, jointly with others, control over the crime.
1006. The Majority therefore concludes that the commission of a crime jointly with another person involves two objective requirements: (i) the existence of an agreement or common plan between two or more persons that, if implemented, will result in the commission of a crime; and (ii) that the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime. These two requirements must be assessed on the basis of all the evidence related to the alleged crime.
b) The Mental Element
1007. Article 30 defines the requirement of “intent” by reference to three particular factors: conduct, consequence and circumstance. First, pursuant to Article 30(2)(a), a person has intent if he or she “means to engage in the conduct”. Second, under Article 30(2)(b) and in relation to a consequence, it is necessary that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Third, by Article 30(3) “knowledge” “means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
1008. As noted earlier, the Pre-Trial Chamber decided that the subjective elements that the suspect must fulfil are the following: (i) ”[t]he suspect and the other co-perpetrators […] must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and […] must all mutually accept such a result by reconciling themselves with it or consenting to it”; and (ii) “the awareness by the suspect of the factual circumstances enabling him or her to jointly control the crime”.
1009. The Pre-Trial Chamber decided that the “cumulative” reference to “intent” and “knowledge” in Article 30 means there must be a “volitional element” on the part of the accused. This encompasses not only situations in which the suspect:
i) knows that his or her actions or omissions will bring about the objective elements of the crime, and ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree)
but also the “other forms of the concept of dolus”. The Pre-Trial Chamber was of the view that these include:
i) situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree); and
ii) situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).
1010. The Pre-Trial Chamber considered that within dolus eventualis “two kinds of scenarios are distinguishable”. First, if the co-perpetrator was aware of a substantial risk that his conduct will bring about “the objective elements of the crime”, his intent can be inferred from the fact that he acted in the manner agreed in spite of this level of awareness. Second, if there was a low risk of bringing about “the objective elements of the crime”, “the suspect must have clearly or expressly accepted the idea that such objective elements may result from his or her actions or omissions”.
1011. The conscription or enlistment of children under the age of 15 or using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of a common plan. The drafting history of the Statute suggests that the notion of dolus eventualis, along with the concept of recklessness, was deliberately excluded from the framework of the Statute (e.g. see the use of the words “unless otherwise provided” in the first sentence of Article 30). The plain language of the Statute, and most particularly the use of the words “will occur” in Article 30(2)(b) as opposed to “may occur”, excludes the concept of dolus eventualis. The Chamber accepts the approach of Pre-Trial Chamber II on this issue.
1012. In the view of the Majority of the Chamber, the “awareness that a consequence will occur in the ordinary course of events” means that the participants anticipate, based on their knowledge of how events ordinarily develop, that the consequence will occur in the future. This prognosis involves consideration of the concepts of “possibility” and “probability”, which are inherent to the notions of “risk” and “danger”. Risk is defined as “danger, (exposure to) the possibility of loss, injury or other adverse circumstance”. The co-perpetrators only “know” the consequences of their conduct once they have occurred. At the time the co-perpetrators agree on a common plan and throughout its implementation, they must know the existence of a risk that the consequence will occur. As to the degree of risk, and pursuant to the wording of Article 30, it must be no less than awareness on the part of the co-perpetrator that the consequence “will occur in the ordinary course of events”. A low risk will not be sufficient.
1013. The Chamber is of the view that the prosecution must establish, as regards the mental element, that:
(i) the accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence “will occur in the ordinary course of events”; and
(ii) the accused was aware that he provided an essential contribution to the implementation of the common plan.
1014. As already highlighted, the general mental element contained in Article 30(1) (“intent” and “knowledge”) applies to all crimes under the jurisdiction of the Court “[u]nless otherwise provided”. Article 8(2)(e)(vii), which gives the Court jurisdiction over the war crime of “conscripting and enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities” does not derogate from this principle. However, under Article 8(2)(e)(vii) of the Elements of Crimes the following requirement is set out:
3. The perpetrator knew or should have known that such a person or persons were under the age of 15 years.
1015. This lesser mental element raises a number of issues, including: (i) whether it is possible, under the framework of the Rome Statute, for the Elements of Crimes to alter any of the material elements of the crimes established in the Statute; and (ii) the scope and interpretation of this “should have known” requirement. However, as set out above, the prosecution does not invite a conviction of the accused on the basis “he should have known” that the individuals who were conscripted or enlisted, or who were used, were under the age of 15 years. It submits the Chamber should convict the accused only if it finds he knew there were children under 15 years. The Majority of the Chamber considers it is unnecessary to approach the case on any other basis, and it would be inappropriate to rule on these substantive issues in the abstract.
1016. Addressing the contextual elements, and in accordance with Element 5 of Article 8(2)(e)(vii) and the introduction to Article 8 of the [2002 ICC] Elements of Crimes, the accused must be “aware of [the] factual circumstances that established the existence of an armed conflict.” It is not necessary for the prosecution to prove he knew that there was an armed conflict. The accused must also be aware of the link between these factual circumstances and his conduct.
6. Conclusions of the Chamber
1018. For the reasons set out above, the prosecution must prove in relation to each charge that:
(i) there was an agreement or common plan between the accused and at least one other co-perpetrator that, once implemented, will result in the commission of the relevant crime in the ordinary course of events;
(ii) the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime;
(iii) the accused meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or he was aware that by implementing the common plan these consequences “will occur in the ordinary course of events”;
(iv) the accused was aware that he provided an essential contribution to the implementation of the common plan; and
(v) the accused was aware of the factual circumstances that established the existence of an armed conflict and the link between these circumstances and his conduct.
4. Overall conclusions
1351. The accused and his co-perpetrators agreed to, and participated in, a common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri. This resulted, in the ordinary course of events, in the conscription and enlistment of boys and girls under the age of 15, and their use to participate actively in hostilities.
1357. The Chamber is satisfied beyond reasonable doubt, as set out above, that Thomas Lubanga acted with the intent and knowledge necessary to establish the charges (the mental element required by Article 30). He was aware of the factual circumstances that established the existence of the armed conflict. Furthermore, he was aware of the nexus between those circumstances and his own conduct, which resulted in the enlistment, conscription and use of children below the age of 15 to participate actively in hostilities.
XII. Disposition
1358. For the foregoing reasons and on the basis of the evidence submitted and discussed before the Chamber at trial, and the entire proceedings, pursuant to Article 74(2) of the Statute, the Chamber finds Mr Thomas Lubanga Dyilo:
Guilty of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC [Forces patriotiques pour la libération du Congo] and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003. 
ICC, Lubanga case, Judgment, 14 March 2012, §§ 917, 976–1016, 1018, 1351 and 1357–1358.
[emphasis in original; footnotes in original omitted]
International Criminal Tribunal for Rwanda
In its judgment in the Akayesu case in 1998, the ICTR quoted Article 6(1) of the 1994 ICTR Statute and stated:
472. … Thus, in addition to responsibility as principal perpetrator, the Accused can be held responsible for the criminal acts of others where he plans with them, instigates them, … or aids and abets them to commit those acts.
473. Thus, Article 6(1) covers various stages of the commission of a crime, ranging from its initial planning to its execution, through its organization. However, the principle of individual criminal responsibility as provided for in Article 6(1) implies that the planning or preparation of the crime actually leads to its commission. Indeed, the principle of individual criminal responsibility for an attempt to commit a crime obtained only in case of genocide. Conversely, this would mean that with respect to any other form of criminal participation and, in particular, those referred to in Article 6(1), the perpetrator would incur criminal responsibility only if the offence were completed.
474. Article 6(1) thus appears to be in accord with the Judgments of the Nuremberg Tribunal which held that persons other than those who committed the crime … could incur individual criminal responsibility. 
ICTR, Akayesu case, Judgment, 2 September 1998, §§ 472–474.
Making a distinction between Article 6(1) and Article 6(3) of the 1994 ICTR Statute, the ICTR further stated:
479. … As can be seen, the forms of participation referred to in Article 6(1), cannot render their perpetrator criminally liable where he did not act knowingly, and even where he should have had such knowledge. This greatly differs from Article 6(3) … which does not necessarily require that the superior acted knowingly to render him criminally liable …
480. The first form of liability set forth in Article 6(1) is planning of a crime. Such planning is similar to the notion of complicity in Civil law, or conspiracy under Common law, as stipulated in Article 2(3) of the Statute. But the difference is that planning, unlike complicity or plotting, can be an act committed by one person. Planning can thus be defined as implying that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.
481. The second form of liability is “incitation” (in the French version of the Statute) to commit a crime, reflected in the English version of Article 6(1) by the word instigated. In English, it seems the words incitement and instigation are synonymous. Furthermore, the word “instigated” or “instigation” is used to refer to incitation in several other instruments. However, in certain legal systems and, under Civil law, in particular, the two concepts are very different. Furthermore, and even assuming that the two words were synonymous, the question would be to know whether instigation under Article 6(1) must include the direct and public elements, required for incitement, particularly, incitement to commit genocide (Article 2(3)(c) of the Statute) which, in this instance, translates incitation into English as “incitement” and no longer “instigation”. Some people are of that opinion. The Chamber also accepts this interpretation.
482. That said, the form of participation through instigation stipulated in Article 6(1) of the Statute, involves prompting another to commit an offence; but this is different from incitement in that it is punishable only where it leads to the actual commission of an offence desired by the instigator. 
ICTR, Akayesu case, Judgment, 2 September 1998, §§ 479–482.
[emphasis in original]
The ICTR added:
611. For the purposes of an international criminal Tribunal which is trying individuals, it is not sufficient merely to affirm that Common Article 3 [of the 1949 Geneva Conventions] and parts of Article 4 of Additional Protocol II – which comprise the subject-matter jurisdiction of Article 4 of the Statute – form part of international customary law. Even if Article 6 of the Statute provides for individual criminal responsibility as pertains to Articles 2, 3 and 4 of the Statute, it must also be shown that an individual committing serious violations of these customary norms incurs, as a matter of custom, individual criminal responsibility thereby. Otherwise, it might be argued that these instruments only state norms applicable to States and Parties to a conflict, and that they do not create crimes for which individuals may be tried.
612. As regards individual criminal responsibility for serious violations of Common Article 3, the ICTY has already affirmed this principle in the Tadić case. In the ICTY Appeals Chamber, the problem was posed thus:
“Even if customary international law includes certain basic principles applicable to both internal and international armed conflicts, Appellant argues that such provisions do not entail individual criminal responsibility when breaches are committed in internal armed conflicts; these provisions cannot, therefore, fall within the scope of the International Tribunal’s jurisdiction.”
613. Basing itself on rulings of the Nuremberg Tribunal, on “elements of international practice which show that States intend to criminalise serious breaches of customary rules and principles on internal conflicts”, as well as on national legislation designed to implement the Geneva Conventions, the ICTY Appeals Chamber reached the conclusion:
“All of these factors confirm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.”
614. This was affirmed by the ICTY Trial Chamber when it rendered in the Tadić judgment.
615. The Chamber considers this finding of the ICTY Appeals Chamber convincing and dispositive of the issue, both with respect to serious violations of Common Article 3 and of Additional Protocol II. 
ICTR, Akayesu case, Judgment, 2 September 1998, §§ 611–615.
International Criminal Tribunal for Rwanda
In its judgment in the Kayishema and Ruzindana case in 1999, the ICTR, quoting Article 6(1) of the 1994 ICTR Statute, stated:
197. … If any of the modes of participation delineated in Article 6(1) can be shown, and the necessary actus reus and mens rea are evidenced, then that would suffice to adduce criminal responsibility under this Article.
198. The Trial Chamber is of the opinion that … there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6(1). This test required the demonstration of (i) participation, that is that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime.
202. This jurisprudence extends naturally to give rise to responsibility when the accused failed to act in breach of a clear duty to act … Individual responsibility pursuant to Article 6(1) is based, in this instance, not on the duty to act, but from the encouragement and support that might be afforded to the principals of the crime from such an omission. 
ICTR, Kayishema and Ruzindana case, Judgment, 21 May 1999, §§ 197–198 and 202.
In its judgment on appeal in 2001, the Appeals Chamber supported the position of the Trial Chamber:
185. Article 6(1) of the [1994 ICTR] Statute provides that a person who “planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.” This provision reflects the criminal law principle that criminal liability is not incurred solely by individuals who physically commit a crime, but may also extend to those who participate in and contribute to a crime in various ways, when such participation is sufficiently connected to the crime, following principles of accomplice liability. Article 6(1) may thus be regarded as intending to ensure that all those who either engage directly in the perpetration of a crime under the Statute, or otherwise contribute to its perpetration, are held accountable.
186. The Appeals Chamber notes that the Trial Chamber did … discuss the general principles relating to criminal responsibility under Article 6(1) of the Statute. The relevant paragraph of the Trial Judgement reads:
The Trial Chamber is of the opinion that, as was submitted by the Prosecution, there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6(1). This test required the demonstration of (i) participation, that is that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime.
The Appeals Chamber finds that this statement corresponds to the elements of individual criminal responsibility as set out, as follows, by the jurisprudence of this Tribunal and that of ICTY:
1. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have a direct and substantial effect on the commission of the illegal act; and
2. The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.
198. … [A] person may be held criminally liable for any conduct, where it is determined that he participated knowingly in the commission of a crime, if his participation directly and substantially contributed to the perpetration of the crime.http://69.94.11.53/ENGLISH/cases/KayRuz/appeal/3e.htm - _ftn303 The intent to participate in the commission of a crime may thus be inferred from the accused’s participation, particularly from his aiding and abetting. Ultimately, and as acknowledged by the Trial Chamber, there must on the part of the Accused be “a clear awareness that this participation will lead to the commission of a crime.”http://69.94.11.53/ENGLISH/cases/KayRuz/appeal/3e.htm - _ftn304 That intention may be inferred from a number of facts,http://69.94.11.53/ENGLISH/cases/KayRuz/appeal/3e.htm - _ftn305 the assessment of which falls to the Trial Chamber. 
ICTR, Kayishema and Ruzindana case, Judgment on Appeal, 1 June 2001, §§ 185–186 and 198.
The Appeals Chamber further stated:
On the aspect of the legal element of “committing” referred to in Article 6(1) of the [1994 ICTR] Statute, the Appeals Chamber in the Tadić Appeal Judgement had occasion to consider an identical provision in Article 7(1) of ICTY Statute and stated that:
This provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.
The Appeals Chamber accepts this statement as accurate. Thus, any finding of direct commission requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the ICTR Statute, together with the requisite knowledge. 
ICTR, Kayishema and Ruzindana case, Judgment on Appeal, 1 June 2001, § 189.
International Criminal Tribunal for Rwanda
In its judgment in the Rutaganda case in 1999, the ICTR stated:
86. … In establishing the ICTY, the Secretary-General dealt with this issue by asserting that in the application of the principle of nullum crimen sine lege the International Tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law. However, in the case of this Tribunal, it was incumbent on the Chambers to decide whether or not the said principle had been adhered to, and whether individuals incurred individual criminal responsibility for violations of these international instruments.
87. In the Akayesu Judgement, the Chamber expressed its opinion that the “norms of Common Article 3 [of the 1949 Geneva Conventions] had acquired the status of customary law in that most States, by their domestic penal codes, have criminalized acts which, if committed during internal armed conflict, would constitute violations of Common Article 3”. The finding of the Trial Chamber in this regard followed the precedents set by the ICTY, which established the customary nature of Common Article 3. Moreover, the Chamber in the Akayesu Judgement held that, although not all of Additional Protocol II could be said to be customary law, the guarantees contained in Article 4(2) (Fundamental Guarantees) thereof, which reaffirm and supplement Common Article 3, form part of existing international law. All of the norms reproduced in Article 4 of the [1994 ICTR] Statute are covered by Article 4(2) of Additional Protocol II.
88. Furthermore, the Trial Chamber in the Akayesu Judgement concluded that violations of these norms would entail, as a matter of customary international law, individual responsibility for the perpetrator. It was also recalled that as Rwanda had become a party to the 1949 Geneva Conventions and their 1977 Additional Protocols, on 5 May 1964 and 19 November 1984, respectively, these instruments were in any case in force in the territory of Rwanda in 1994, and formed part of Rwandan law. Thus, Rwandan nationals who violated these international instruments incorporated into national law, including those offences as incorporated in Article 4 of the Statute, could be tried before the Rwandan national courts.
89. In the Kayishema and Ruzindana Judgement, Trial Chamber II deemed it unnecessary to delve into the question as to whether the instruments incorporated in Article 4 of the Statute should be considered as customary international law. Rather the Trial Chamber found that the instruments were in force in the territory of Rwanda in 1994 and that persons could be prosecuted for breaches thereof on the basis that Rwanda had become a party to the Geneva Conventions and their Additional Protocols. The offences enumerated in Article 4 of the Statute, said the Trial Chamber, also constituted offences under Rwandan law.
90. Thus it is clear that, at the time the crimes alleged in the Indictment were perpetrated, persons were bound to respect the guarantees provided for by the 1949 Geneva Conventions and their 1977 Additional Protocols, as incorporated in Article 4 of the Statute. Violations thereof, as a matter of custom and convention, incurred individual responsibility, and could result in the prosecution of the authors of the offences. 
ICTR, Rutaganda case, Judgment, 6 December 1999, §§ 86–90.
International Criminal Tribunal for Rwanda
In its judgment in the Musema case in 2000, the ICTR stated:
The Chamber therefore concludes that, at the time the crimes alleged in the Indictment were perpetrated, persons were bound to respect the provisions of the 1949 Geneva Conventions and their 1977 Additional Protocols, as incorporated in Article 4 of the è1994 ICTR] Statute. Violations thereof, as a matter of custom and convention, attracted individual criminal responsibility and could result in the prosecution of the authors of the offences. 
ICTR, Musema case, Judgment, 27 January 2000, § 242.
International Criminal Tribunal for Rwanda
In its judgment in the Semanza case in 2003, the ICTR Trial Chamber considered the ICTR jurisprudence with regard to individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
379. To satisfy Article 6(1), an individual’s participation must have substantially contributed to, or have had a substantial effect on, the completion of a crime.
a. Forms of Participation
(i) Planning
380. “Planning” envisions one or more persons formulating a method of design or action, procedure, or arrangement for the accomplishment of a particular crime. The level of participation in the planning must be substantial such as actually formulating the criminal plan or endorsing a plan proposed by another.
(ii) Instigating
381. “Instigating” refers to urging, encouraging, or prompting another person to commit a crime. Instigation need not be direct and public. Proof is required of a causal connection between the instigation and the commission of the crime.
(iii) Ordering
382. “Ordering” refers to a situation where an individual has a position of authority and uses that authority to order – and thus compel – another individual, who is subject to that authority, to commit a crime. http://69.94.11.53/ENGLISH/cases/Semanza/judgement/5.htm - _ftn634Criminal responsibility for ordering the commission of a crime under the Statute implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it.
(iv) Committing
383. “Committing” refers to the direct personal or physical participation of an accused in the actual acts which constitute the material elements of a crime under the Statute.
(v) Aiding and Abetting in the Planning, Preparation, or Execution
384. The terms “aiding” and “abetting” refer to distinct legal concepts. The term “aiding” means assisting or helping another to commit a crime, and the term “abetting” means encouraging, advising, or instigating the commission of a crime. However, the terms “aiding” and “abetting” are frequently employed together as a single broad legal concept, as is the case in this Tribunal.
385. In the Tribunal’s jurisprudence, “aiding and abetting” refers to all acts of assistance that lend encouragement or support to the commission of a crime. This encouragement or support may consist of physical acts, verbal statements, or, in some cases, mere presence as an “approving spectator”. Except in the case of the “approving spectator,” the assistance may be provided before or during the commission of the crime, and an accused need not necessarily be present at the time of the criminal act.
386. Criminal responsibility as an “approving spectator” does require actual presence during the commission of the crime or at least presence in the immediate vicinity of the scene of the crime, which is perceived by the actual perpetrator as approval of his conduct. The authority of an individual is frequently a strong indication that the principal perpetrators will perceive his presence as an act of encouragement. Responsibility, however, is not automatic, and the nature of the accused’s presence must be considered against the background of the factual circumstances.
b. Mens Rea
387. An individual who “commits” a crime as a principal perpetrator must possess the requisite mens rea for the underlying crime.
388. In cases involving a form of accomplice liability, the mens rea requirement will be satisfied where an individual acts intentionally and with the awareness that he is influencing or assisting the principal perpetrator to commit the crime. The accused need not necessarily share the mens rea of the principal perpetrator; the accused must be aware, however, of the essential elements of the principal’s crime including the mens rea.
389. In the case of the “approving spectator”, the individual must know that his presence would be seen by the perpetrator of the crime as encouragement or support. The requisite mens rea may be established from the circumstances including prior like behaviour, failure to punish, or verbal encouragement. 
ICTR, Semanza case, Judgment, 15 May 2003, §§ 379–389.
International Criminal Tribunal for Rwanda
In its judgment in the Kajelijeli case in 2003, the ICTR Trial Chamber considered the accused’s individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
756. Article 6(1) addresses criminal responsibility for unlawful conduct of an accused and is applicable to all three categories of crimes (genocide and derivative crimes; crimes against humanity; and violations of Article 3 Common to the Geneva Conventions and Additional Protocol II).
757. Article 6(1) reflects the principle that criminal responsibility for any crime in the Statute is incurred not only by individuals who physically commit that crime, but also by individuals who participate in and contribute to the commission of a crime in other ways, ranging from its initial planning to its execution, as specified in the five categories of acts in this Article: planning, instigating, ordering, committing, or aiding and abetting.
758. Pursuant to Article 6(1), an individual’s participation in the planning or preparation of an offence within the Tribunal’s jurisdiction will give rise to criminal responsibility only if the criminal act is actually committed. Accordingly, crimes which are attempted but not consummated are not punishable, except for the crime of genocide, pursuant to Article 2(3)(b),(c) and (d) of the Statute.
759. Jurisprudence has established that for an accused to incur criminal responsibility, pursuant to Article 6(1), it must be shown that his or her participation has substantially contributed to, or has had a substantial effect on, the completion of a crime under the Statute.
760. The elements of the crimes of genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and Additional Protocol II, articulated in Articles 2 to 4 of the Statute, are inherent in the five forms of criminal participation enumerated in Article 6(1), for which an individual may incur criminal responsibility. These five forms of participation are discussed below.
Forms of Participation
(i) Planning
761. “Planning”, implies that one or more persons contemplate a design for commission of a crime at both the preparatory and execution phases. The existence of a plan may be demonstrated through circumstantial evidence. In Bagilishema, it was held that the level of participation in planning to commit a crime must be substantial, such as actually formulating a plan or endorsing a plan proposed by another individual.
(ii) Instigating
762. The second form of participation, “instigating”, involves prompting another person to commit an offence. Instigation need not be direct and public. Both positive acts and omissions may constitute instigation. Instigation is punishable on proof of a causal connection between the instigation and the commission of the crime.
(iii) Ordering
763. The third form of participation, “ordering”, implies a situation in which an individual with a position of authority uses such authority to impel another, who is subject to that authority, to commit an offence. 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.
(iv) Committing
764. To “commit” a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law. In this sense, there may be one or more perpetrators in relation to the same crime where the conduct of each perpetrator satisfies the requisite elements of the substantive offence.
(v) Aiding and Abetting in the Planning, Preparation, or Execution
765. “Aiding and abetting” relate to discrete legal concepts. “Aiding” signifies providing assistance to another in the commission of a crime. “Abetting” signifies facilitating, encouraging, advising or instigating the commission of a crime. Legal usage, including in the Statute and case law of ICTR and ICTY, so often inter-links the two terms that they are treated as a broad singular legal concept.
766. “Aiding and abetting”, pursuant to the jurisprudence of the ad hoc Tribunals, relates to acts of assistance that intentionally provide encouragement or support to the commission of a crime. The act of assistance may consist of an act or an omission, and it may occur before, during or after the act of the actual perpetrator. The contribution of an aider and abetter before or during the fact may take the form of practical assistance, encouragement or moral support, which has a substantial effect on the accomplishment of the substantive offence. Such act of assistance before or during the fact need not have actually caused the consummation of the crime by the actual perpetrator, but it must have had a substantial effect on the commission of the crime by the actual perpetrator.
Mens Rea
767. To be criminally culpable of a crime, the perpetrator who of the crime must possess the requisite mens rea for that underlying crime.
768. For purposes of accomplice liability, the mens rea requirement will be fulfilled where an individual acts with the knowledge that his or her act(s) assist in the commission of the crime by the actual perpetrator(s). While the accused need not know the precise offence being committed by the actual perpetrator(s), the accused must be aware of the essential elements of the crime, and must be seen to have acted with awareness that he or she thereby supported the commission of the crime. An accused’s position of superior authority, in and of itself, does not suffice to conclude that the accused, by his or her mere presence at the scene of the crime, encouraged or supported the offence. The presence of the accused at the crime site, however, may be perceived as a significant indicium of his or her encouragement or support. The requisite mens rea may be established from an assessment of the circumstances, including the accused’s prior and similar behaviour, failure to punish or verbal encouragement. 
ICTR, Kajelijeli case, Judgment, 1 December 2003, §§ 756–768.
International Criminal Tribunal for Rwanda
In its judgment on appeal in the Akayesu case in 2001, the ICTR Appeals Chamber affirmed that individual criminal responsibility for violations of common Article 3 of the 1949 Geneva Conventions does not require an accused to have acted as a public agent or government representative:
The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category. 
ICTR, Akayesu case, Judgment on Appeal, 1 June 2001, § 443.
On the interpretation of individual criminal responsibility in the 1994 ICTR Statute, the Appeals Chamber stated:
477. Article 6(1) of the [1994 ICTR] Statute … provides that:
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.
478. There is a glaring disparity between the English text and the French text: indeed, the English word “instigated” is translated into French as “incité”. That said, the Appeals Chamber is of the opinion that linguistically the two terms are synonymous. The Appeals Chamber points out in particular that neither text contains any suggestion or recommendation that incitement must be direct and public. Consequently, by interpreting this provision “in accordance with [its] ordinary meaning”, the Appeals Chamber holds that, although instigation may, in certain circumstances, be direct and public, this does not, however, constitute a requirement. Nothing in Article 6 (1) suggests that there is such a requirement. The Appeals Chamber concurs with the Prosecution’s argument that “[…][ i]f the drafters of the Statute had wished to similarly confine ‘instigation’ to situations where it was ‘public and direct’, it would be reasonable to expect that they would have specifically required it”. It goes without saying that “[a] special meaning shall be given to a term if it is established that the parties so intended”. Such an intent has not been established.
482. … [T]he Appeals Chamber finds that there is no cause to hold that the Security Council intended Article 6(1) of the [1994 ICTR] Statute to include an additional element (absent from the explicit language of the provision), which would require an interpretation inconsistent with its plain and ordinary meaning.
483. … [T]he Appeals Chamber finds that “incitement”, as set out in Article 6(1) of the Statute, need not be “direct and public”. 
ICTR, Akayesu case, Judgment on Appeal, 1 June 2001, §§ 477–488 and 482–483.
International Criminal Tribunal for Rwanda
In its judgment in the Bagilishema case in 2001, the ICTR Trial Chamber noted:
27. Article 6 defines the modalities of participation that give rise to individual responsibility for crimes under the Statute.
1.1 Responsibility under Article 6(1) of the Statute
Committing
29. The actual perpetrator may incur responsibility for committing a crime under the Statute by means of an unlawful act or omission.
Planning, instigating, ordering
30. An individual who participates directly in planning to commit a crime under the Statute incurs responsibility for that crime even when it is actually committed by another person. The level of participation must be substantial, such as formulating a criminal plan or endorsing a plan proposed by another. An individual who instigates another person to commit a crime incurs responsibility for that crime. By urging or encouraging another person to commit a crime, the instigator may contribute substantially to the commission of the crime. Proof is required of a causal connection between the instigation and the actus reus of the crime. The principle of criminal responsibility applies also to an individual who is in a position of authority, and who uses his or her authority to order, and thus compel a person subject to that authority, to commit a crime.
31. Proof is required that whoever planned, instigated, or ordered the commission of a crime possessed criminal intent, that is, that he or she intended that the crime be committed.
Aiding and Abetting in the Planning, Preparation, or Execution
32. An accomplice must knowingly provide assistance to the perpetrator of the crime, that is, he or she must know that it will contribute to the criminal act of the principal. Additionally, the accomplice must have intended to provide the assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.
33. For an accomplice to be found responsible for a crime under the Statute, he or she must assist the commission of the crime; the assistance must have a substantial effect on the commission of the crime. The Chamber, however, agrees with the view expressed in Furundzija, that the assistance given by the accomplice need not constitute an indispensable element, i.e. a conditio sine qua non, of the acts of the perpetrator. Further, the participation in the commission of a crime does not require actual physical presence or physical assistance. Mere encouragement or moral support by an aider and abettor may amount to “assistance”. The accomplice need only be “concerned with the killing”. The assistance need not be provided at the same time that the offence is committed.
34. The Chamber agrees with the conclusions in Furundzija and Akayesu that presence, when combined with authority, may constitute assistance (the actus reus of the offence) in the form of moral support. In Furundzija, the Chamber inferred from the Synagogue case that an “approving spectator who is held in such respect by other perpetrators that his presence encourages them in their conduct, may be guilty in a crime against humanity”. Insignificant status may, however, put the “silent approval” below the threshold necessary for the actus reus.
35. In Akayesu, the Chamber found that the Accused aided and abetted in the commission of acts “by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises… and in his presence…, and by facilitating the commission of these acts 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.”
36. The approving spectator must therefore not have an insignificant status if his or her presence is to have the required effect on the perpetrators, such as encouragement, moral support or tacit approval. As long as the accomplice has the requisite mens rea, which includes knowing that his presence would be seen by the perpetrator of the crime as encouragement or support, all acts of assistance that lend encouragement or support will constitute aiding and abetting, even where the “act” is mere presence. However, liability for aiding and abetting as an “approving spectator” presupposes actual presence at the scene of the crime, or at least presence in the immediate vicinity of the scene of the crime. The mens rea of the approving spectator may be deduced from the circumstances, and may include prior concomitant behaviour, for instance allowing crimes to go unpunished or providing verbal encouragement. 
ICTR, Bagilishema case, Judgment, 7 June 2001, §§ 27, 29–36.
[emphasis in original]
International Criminal Tribunal for Rwanda
In its judgment in the Kamuhanda case in 2004, the ICTR Trial Chamber stated regarding direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
587. Article 6(1) addresses criminal responsibility for unlawful conduct of an accused and is applicable to all three categories of crimes: genocide and derivative crimes; Crimes against Humanity; and violations of Article 3 Common to the Geneva Conventions and Additional Protocol II.
588. Article 6(1) reflects the principle that criminal responsibility for any crime in the Statute is incurred not only by individuals who physically commit that crime, but also by individuals who participate in and contribute to the commission of a crime in other ways, ranging from its initial planning to its execution, as specified in the five categories of acts in this Article: planning, instigating, ordering, committing, or aiding and abetting.
589. Pursuant to Article 6(1), an individual’s participation in the planning or preparation of an offence within the Tribunal’s jurisdiction will give rise to criminal responsibility only if the criminal act is actually committed. Accordingly, crimes which are attempted but not consummated are not punishable, except for the crime of genocide, pursuant to Article 2(3)(b),(c) and (d) of the Statute.
590. Jurisprudence has established that for an accused to incur criminal responsibility, pursuant to Article 6(1), it must be shown that his or her participation has substantially contributed to, or has had a substantial effect on, the completion of a crime under the Statute.
591. The elements of the crimes of genocide, Crimes against Humanity, and violations of Article 3 common to the Geneva Conventions and Additional Protocol II, articulated in Articles 2 to 4 of the Statute, are inherent in the five forms of criminal participation enumerated in Article 6(1), for which an individual may incur criminal responsibility. These five forms of participation are discussed below.
(i) Planning
592. “Planning”, implies that one or more persons contemplate a design for the commission of a crime at both the preparatory and execution phases. The existence of a plan may be demonstrated through circumstantial evidence. In Bagilishema, it was held that the level of participation in planning to commit a crime must be substantial, such as the actual formulation of a plan or the endorsement of a plan proposed by another individual.
(ii) Instigating
593. “Instigating”, involves prompting another person to commit an offence, and needs not be direct or public. Both positive acts and omissions may constitute instigation. Instigation is punishable on proof of a causal connection between the instigation and the commission of the crime.
(iii) Ordering
594. “Ordering”, implies a situation in which an individual with a position of authority uses such authority to impel another, who is subject to that authority, to commit an offence. 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. The position of authority of the person who gave an order may be inferred from the fact that the order was obeyed.
(iv) Committing
595. To “commit” a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law. In this sense, there may be one or more perpetrators in relation to the same crime where the conduct of each perpetrator satisfies the requisite elements of the substantive offence.
(v) Aiding and Abetting in the Planning, Preparation, or Execution of an Offence
596. “Aiding and abetting” relate to discrete legal concepts. “Aiding” signifies providing assistance to another in the commission of a crime. “Abetting” signifies facilitating, encouraging, advising or instigating the commission of a crime. Legal usage, including that in the Statute and case law of the ICTR and the ICTY, often inter-links the two terms and treats them as a broad singular legal concept.
597. “Aiding and abetting”, pursuant to the jurisprudence of the ad hoc Tribunals, relates to acts of assistance that intentionally provide encouragement or support to the commission of a crime. The act of assistance may consist of an act or an omission, and it may occur before, during or after the act of the actual perpetrator. The contribution of an aider and abetter before or during the fact may take the form of practical assistance, encouragement or moral support, which has a substantial effect on the accomplishment of the substantive offence. Such acts of assistance before or during the fact need not have actually caused the consummation of the crime by the actual perpetrator, but must have had a substantial effect on the commission of the crime by the actual perpetrator.
598. To be held criminally culpable of a crime, the perpetrator must possess the requisite mens rea for that underlying crime.
599. For purposes of accomplice liability, the mens rea requirement will be fulfilled where an individual acts with the knowledge that his or her act(s) assist in the commission of the crime by the actual perpetrator(s). While the accused need not know the precise offence being committed by the actual perpetrator(s), the accused must be aware of the essential elements of the crime, and must be seen to have acted with awareness that he or she thereby supported the commission of the crime.
600. An accused’s position of superior authority, in and of itself, does not suffice to conclude that the accused, by his or her mere presence at the scene of the crime, encouraged or supported the offence. The presence of the accused at the crime site, however, may be perceived as a significant indicium of his or her encouragement or support. The requisite mens rea may be established from an assessment of the circumstances, including the accused’s prior and similar behaviour, failure to punish or verbal encouragement. 
ICTR, Kamuhanda case, Judgment, 22 January 2004, §§ 587–600.
International Criminal Tribunal for Rwanda
In its judgment in the Simba case in 2005, the ICTR Trial Chamber considered the ICTR jurisprudence with regard to individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute, and particularly in relation to the concept of “joint criminal enterprise”:
385. The Prosecution seeks to establish Simba’s criminal liability for the massacres … under Article 6 (1) of the Statute based on the theory of joint criminal enterprise. Article 6 (1) sets out certain forms of individual criminal responsibility applicable to the crimes falling within the Tribunal’s jurisdiction. Article 6 (1) does not make explicit reference to “joint criminal enterprise”. However, the Appeals Chamber has previously held that participating in a joint criminal enterprise is a form of liability which exists in customary international law and that it is a form of “commission” under Article 6 (1). [See in particular: Tadic, Judgment on Appeal, 15 July 1999, §§. 188 and 195-226].
1.1 Elements of Joint Criminal Enterprise
386. Article 6 (1) has been interpreted to contain three forms of joint criminal enterprise: basic, systemic, and extended. At the close of its case, the Prosecution indicated that it is primarily pursuing the basic form. The “basic” form requires that all the co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention.
387. According to settled jurisprudence, the required actus reus for each form of joint criminal enterprise comprises three elements. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example, murder, extermination, torture, or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose. The Appeals Chamber in Kvocka et al. provided guidance on distinguishing between joint criminal enterprise and other forms of liability, such as aiding and abetting.
388. The required mens rea for each form of joint criminal enterprise varies. The basic form of joint criminal enterprise requires the intent to perpetrate a certain crime, this intent being shared by all co-perpetrators. Where the underlying crime requires a special intent, such as discriminatory intent, the accused, as a member of the joint criminal enterprise, must share the special intent. 
ICTR, Simba case, Judgment, 13 December 2005, §§ 385–388.
International Criminal Tribunal for Rwanda
In its judgment in the Gacumbitsi case in 2004, the ICTR Trial Chamber stated regarding individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute and its relation to individual criminal responsibility of superiors under Article 6(3) of the 1994 ICTR Statute:
264. The Indictment charges the Accused with criminal responsibility under Article 6(1) of the Statute by virtue of his affirmative acts in “ordering, instigating, commanding, participating in and aiding and abetting the preparation and execution of the crime charged”.
265. The Indictment charges the Accused with criminal responsibility under Article 6(3) of the Statute by virtue of his “actual constructive knowledge of the acts or omissions of soldiers, gendarmes, communal police, Interahamwe, civilian militia and civilians acting under his authority, and his failure to take necessary and reasonable measures to stop or prevent them, or to discipline and punish them, for their acts in the preparation and execution of the crime charged”.
266. These two forms of responsibility cannot be charged cumulatively on the basis of the same set of facts. In case of cumulative charging, the Trial Chamber will retain only the form of responsibility that best describes the Accused’s culpable conduct.
267. Article 6(1) of the Statute reflects the criminal law principle that criminal liability is incurred by individuals who participate in and contribute to the crime in various ways according to the five forms of participation covered by Article 6(1) of the Statute …
271. “Planning” presupposes that one or more persons contemplate the commission of a crime at both its preparatory and execution phases …
279. “Instigating” involves prompting another person to commit an offence. Instigating need not be direct and public. For it to be a punishable offence, proof is required of a causal connection between the instigation and the actus reus of the crime …
281. “Ordering” refers to a situation where an individual in a position of authority uses such authority to compel another individual to commit an offence. On this issue, the two ad hoc Tribunals have ruled differently. One has held that ordering implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it [ICTR, Semanza case, Judgment, § 382; Ntagerura and others case, Judgment, § 624]. The other has held that ordering does not necessarily imply the existence of such a formal superior-subordinate relationship [ICTY, Kordić and Čerkez case, Judgment, § 388. See also ICTR, Kajelijeli case, Judgment, § 763].
282. The Trial Chamber is of the opinion that the issue must be determined in light of the circumstances of the case. The authority of an influential person can derive from his social, economic, political or administrative standing, or from his abiding moral principles. Such authority may also be de jure or de facto. When people are confronted with an emergency or danger, they can naturally turn to such influential person, expecting him to provide a solution, assistance or take measures to deal with the crisis. When he speaks, everyone listens to him with keen interest; his advice commands overriding respect over all others and the people could easily see his actions as an encouragement. Such words and actions are not necessarily culpable, but can, where appropriate, amount to forms of participation in crime, such as “incitement” and “aiding and abetting” provided for in Article 6(1) of the Statute. In certain circumstances, the authority of an influential person is enhanced by a lawful or unlawful element of coercion, such as declaring a state of emergency, the de facto exercise of an administrative function, or even the use of threat or unlawful force. The presence of a coercive element is such that it can determine the way the words of the influential person are perceived. Thus, mere words of exhortation or encouragement would be perceived as orders within the meaning of Article 6(1) referred to above. Such a situation does not, ipso facto, lead to the conclusion that a formal superior-subordinate relationship exists between the person giving the order and the person executing it. As a matter of fact, instructions given outside a purely informal context by a superior to his subordinate within a formal administrative hierarchy, be it de jure or de facto, would also be considered as an “order” within the meaning of Article 6(1) of the Statute.
285. “Committing” refers generally to the direct and physical perpetration of the crime by the offender himself …
286. “Aiding and abetting” constitute a more complex form of participation. Aiding means assisting or helping another to commit a crime. Abetting means facilitating, advising or instigating the commission of a crime …
287. The Chamber finds that the requisite specific intent to establish genocide is in itself evidence of the Accused’s intention to participate in the commission of such acts of genocide.
288. In the light of the foregoing, the Chamber finds [the accused] responsible for planning, instigating, ordering the communal police, committing and aiding and abetting in the killing of members of the Tutsi ethnic group, as part of the scheme to perpetrate the crime of genocide.
290. Since the Chamber has found the Accused liable under Article 6(1) of the Statute for perpetrating genocide against the Tutsi in Rusumo commune in April 1994, the Chamber does not deem it necessary, given the similarity of the acts charged, to find whether he also incurs criminal responsibility under Article 6(3) of the Statute. 
ICTR, Gacumbitsi case, Judgment, 17 June 2004, §§ 264–267, 271, 279, 281–282, 285–288 and 290.
[emphasis in original]
In its judgment in 2006, the majority of the ICTR Appeals Chamber, Judge Güney dissenting, stated regarding the meaning of “committing” under Article 6(1) of the 1994 ICTR Statute in the context of genocide:
59. … The Trial Chamber convicted the Appellant of “ordering” and “instigating” genocide on the basis of findings of fact detailing certain conduct that, in the view of the Appeals Chamber, should be characterized not just as “ordering” and “instigating” genocide, but also as “committing” genocide.
60. As the Trial Chamber observed, the term “committed” in Article 6(1) of the Statute has been held to refer “generally to the direct and physical perpetration of the crime by the offender himself.” In the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime. Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he “directed” and “played a leading role in conducting and, especially, supervising”. It was he who personally directed the Tutsi and Hutu refugees to separate -- and that action, which is not adequately described by any other mode of Article 6(1) liability, was as much an integral part of the genocide as were the killings which it enabled. …
61. The Appeals Chamber is persuaded that in the circumstances of this case, the modes of liability used by the Trial Chamber to categorize this conduct – “ordering” and “instigating” – do not, taken alone, fully capture the Appellant’s criminal responsibility. The Appellant did not simply “order” or “plan” genocide from a distance and leave it to others to ensure that his orders and plans were carried out; nor did he merely “instigate” the killings. Rather, he was present at the crime scene to supervise and direct the massacre, and participated in it actively by separating the Tutsi refugees so that they could be killed. The Appeals Chamber finds by majority, Judge Güney dissenting, that this constitutes “committing” genocide. 
ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, §§ 59–61.
On the concept of “joint criminal enterprise” as a form of “committing” under Article 6(1) of the 1994 ICTR Statute, the Appeals Chamber stated:
The Appeals Chamber, following ICTY precedent, has recognized that an accused before this Tribunal may be found individually responsible for “committing” a crime within the meaning of Article 6(1) of the Statute under one of three categories of “joint criminal enterprise” (“JCE”) liability … The first (or “basic”) category encompasses cases in which “all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention” to commit the crime that is charged. The third (or “extended”) category concerns cases in which the crime charged, “while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose.” 
ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, § 158.
International Criminal Tribunal for Rwanda
In its judgment in the Ndindabahizi case in 2004, the ICTR Trial Chamber stated regarding the interpretation of individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
455. The Indictment alleges that the Accused is criminally responsible under Article 6(1) of the Statute, which provides:
A person who planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.
This section broadens the modes of culpable participation in offences defined by the Statute …
456. Instigation is urging or encouraging, verbally or by other means of communication, another person to commit a crime, with the intent that the crime will be committed. In accordance with general principles of accomplice liability, instigation does not arise unless it has directly and substantially contributed to the perpetration of the crime by another person. Unlike the crime of direct and public incitement, instigation does not give rise to liability unless the crime is actually committed by a principal or principals.
457. Aiding and abetting, though distinct concepts, are almost universally used conjunctively, as in Article 6(1) of the Statute, to refer broadly to any form of assistance and encouragement given to another person to commit a crime. As with instigation, aiding and abetting is a form of accomplice liability that requires direct and substantial contribution to the perpetration of the crime by another person. The assistance and encouragement may consist of physical acts, verbal statements, or even mere presence. The presence of a person in a position of authority at a place where a crime is being committed, or at which crimes are notoriously committed, may convey approval for those crimes which amounts to aiding and abetting. It is not the position of authority itself that is important, but rather the encouraging effect that a person holding the office may lend to events. 
ICTY, Ndindabahizi case, Judgment, 15 July 2004, §§ 455–457.
International Criminal Tribunal for Rwanda
In its judgment in the Ntakirutimana case in 2004, the ICTR Appeals Chamber stated regarding the concept of “joint criminal enterprise” as a basis for individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
461. Article 6(1) of the Statute sets out the forms of individual criminal responsibility which apply to all the crimes falling within the International Tribunal’s jurisdiction …
462. This provision lists the forms of criminal conduct which, provided that all other necessary conditions are satisfied, may result in an accused incurring individual criminal responsibility for one or more of the crimes provided for in the Statute. A mirror provision is found in Article 7(1) of the ICTY Statute. The ICTY Appeals Chamber has previously held that the modes of liability identified under Article 7(1) of the ICTY Statute include participation in a joint criminal enterprise as a form of “commission” under that Article.
463. In the jurisprudence of the ICTY three categories of joint criminal enterprise have been identified as having the status of customary international law. The first category is a “basic” form of joint criminal enterprise. It is represented by cases where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention. An example is a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants may carry out a different role, each of them has the intent to kill. This form of joint criminal enterprise is the only one relevant to the present case and will be the focus thereafter.
464. The second category is a “systemic” form of joint criminal enterprise. It is a variant of the basic form, characterised by the existence of an organised system of ill-treatment. An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise.
465. The third category is an “extended” form of joint criminal enterprise. It concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of executing that common purpose. An example is a common purpose or plan on the part of a group to forcibly remove at gun-point members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common purpose, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians.
466. For joint criminal enterprise liability to arise an accused must act with a number of other persons. They need not be organised in a military, political or administrative structure. There is no necessity for the criminal purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. The accused’s participation in the criminal enterprise need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common purpose.
467. The mens rea differs according to the category of joint criminal enterprise under consideration. The basic form requires the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). The systemic form (which, as noted above, is a variant of the first), requires personal knowledge of the system of ill-treatment (whether proved by express testimony or as a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this system of ill-treatment. Finally, the extended form of joint criminal enterprise, requires the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or, in any event, to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk” – that is, being aware that such a crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise.
468. The Appeals Chamber notes that while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only the second ICTR case in which the Appeals Chamber has been called upon to address this issue. Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute. 
ICTR, Ntakirutimana case, Judgment on Appeal, 13 December 2004, §§ 461–468.
On the mens rea requirements for aiding and abetting, especially in the context of genocide, the Appeals Chamber stated:
494. The Prosecution submits that the Trial Chamber erred in finding that aiding and abetting genocide, within the meaning of Article 6(1) of the Statute, requires proof that the accused “had the intent to destroy, in whole or in part, an ethnic or racial group, as such”.
500. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime. More recently, as the Prosecution argued at the Appeal hearing, in the Krstić case the ICTY Appeals Chamber considered that the same principle applies to the Statute’s prohibition of genocide and that “[t]he conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.” In reaching this conclusion, the Krstić Appeals Chamber derived aiding and abetting as a mode of liability from Article 7(1) of the ICTY Statute, but also considered that aiding and abetting constitutes a form of complicity, suggesting that complicity under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute would also encompass aiding and abetting, based on the same mens rea, while other forms of complicity may require proof of specific intent.
501. The Appeals Chamber endorses this view and finds that a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of this Tribunal. Accordingly, the Trial Chamber erred in determining that the mens rea for aiding and abetting genocide requires intent to commit genocide. It is not disputed that the above-mentioned error did not invalidate the Trial Chamber’s verdict in the present case. 
ICTR, Ntakirutimana case, Judgment on Appeal, 13 December 2004, §§ 494, 500–501.
As regards the elements of aiding and abetting the crime of extermination as a crime against humanity, the Appeals Chamber clarified:
The actus reus for aiding and abetting the crime of extermination is that the accused carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of that crime. This support must have a substantial effect upon the perpetration of the crime. The requisite mens rea is knowledge that the acts performed by the aider and abettor assist the commission of the crime of extermination committed by the principal. If it is established that the accused provided a weapon to one principal, knowing that the principal will use that weapon to take part with others in a mass killing, as part of a widespread and systematic attack against the civilian population, and if the mass killing in question occurs, the fact that the weapon procured by the accused “only” killed a limited number of persons is irrelevant to determining the accused’s responsibility as an aider and abettor of the crime of extermination. 
ICTR, Ntakirutimana case, Judgment on Appeal, 13 December 2004, § 530.
International Criminal Tribunal for Rwanda
In its judgment and sentence in the Rutaganira case in 2005, the ICTR Trial Chamber addressed the question of complicity by omission under Article 6(1) of the 1994 ICTR Statute:
61. The Accused pleaded guilty of the crime of extermination as a crime against humanity (Count 16 of the Indictment), through complicity by omission.
62. It is the case that complicity is not expressly included among the forms of liability enumerated in Article 6(1), which provides:
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.
63. The case-law of both ad hoc Tribunals has indeed determined a form of complicity in aiding and abetting provided for under Article 6(1). Thus, in Furundžija, an ICTY Trial Chamber held that complicity “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”.
64. The Chamber must also satisfy itself that aiding and abetting as provided for in Article 6(1) can be constituted by an omission and not only by an act. For instance, in Blaškić, the ICTY Trial Chamber held that “the actus reus of aiding and abetting may be perpetrated through an omission, provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea”. In Rutaganda, the Trial Chamber of the Tribunal held that “an accused may participate in the commission of a crime either through direct commission of an unlawful act or by omission, where he has a duty to act”.
65. Accordingly, the Chamber finds that participation by omission in extermination as a crime against humanity … is covered under Article 6(1) of the Statute.
66. The Chamber must therefore consider the elements of aiding and abetting by omission, namely, the act (actus reus) and the mental element (mens rea).
1. Actus reus
67. The Chamber notes that determining omission under Article 6(1) of the Statute is a more complex task than showing omission under Article 6(3). In the latter case, omission can be attributed to a person who, de jure and/or de facto, has an unambiguous status as a military or civilian superior. Such is not the case under Article 6(1) in the instant case.
68. In determining participation by omission in extermination as a crime against humanity … , the Chamber addressed the following questions:
(i) Did the Accused have authority and did he choose to not exercise it?
(ii) Did the Accused have a moral authority over the principals such as to prevent them from committing the crime and did he choose not to exercise it?
(iii) Was the Accused under a legal duty to act which he failed to fulfill?
(iv) Connection between the perpetration of the crime and participation by aiding and abetting
(a) Temporal and geographical connection
85. Under the case-law of the ad hoc Tribunals, there must be a temporal and geographical connection between criminal participation under Article 6(1) and the perpetration of the crime. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom.
(b) Effect of aiding and abetting on the perpetration of a crime by the principal perpetrator
88. Both ad hoc Tribunals have held that for criminal responsibility under Article 6(1) to attach, the act of aiding and abetting must have a decisive and substantial effect on the commission of the crime by the principal perpetrator.
89. In the light of such case-law, the Chamber is of the opinion that for an accused to incur criminal responsibility under Article 6(1) of the Statute, it must be shown that his or her participation has substantially contributed to, or has had a substantial effect on the consummation of a crime under the Statute. With respect to aiding and abetting by omission, such contribution or effect can be assessed only against the effectiveness of any action taken to prevent the commission of the crime.
2. Mens rea
92. Pursuant to the case-law of the Tribunal and of ICTY, the Chamber is of the opinion that the mens rea of an accomplice lies in his knowledge of, on the one hand, the mens rea of the principal perpetrator of the crime and, on the other hand, of the fact that his conduct would further the perpetration of the crime.
93. The Chamber must determine whether the Accused … had knowledge:
(i) of the principal perpetrator committing extermination as part of a widespread and systematic attack against a civilian population on ethnic grounds; and
(ii) of his own conduct furthering the perpetration of said crime[.] 
ICTR, Rutaganira case, Judgment and Sentence, 14 March 2005, §§ 61–68, 85, 88–89 and 92–93.
International Criminal Tribunal for Rwanda
In its judgment in the Muhimana case in 2005, the ICTR Trial Chamber stated regarding the modes of direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
503. Planning occurs when one or more persons contemplate and take any steps towards commission of a crime.
504. Instigating involves prompting another person to commit an offence. Instigating need not be direct or public, as required for direct and public incitement to commit genocide, punishable pursuant to Article 2 (3) (c) of the [1994 ICTR] Statute. Proof is required of a causal connection between the instigation and the actus reus of the crime.
505. Ordering refers to a situation where an individual, in a position of authority, uses such authority to compel another individual to commit an offence.
506. Committing refers to the direct and physical perpetration of the crime by the offender.
507. Aiding and abetting are distinct legal concepts. Aiding means assisting or helping another to commit a crime. Abetting means facilitating, advising, or instigating the commission of a crime. 
ICTR, Muhimana case, Judgment, 28 April 2005, §§ 503–507.
The ICTR Appeals Chamber, in its judgment in 2007, noted regarding aiding and abetting as a mode of liability:
The Appeals Chamber has explained that an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and that this support has a substantial effect on the perpetration of the crime. The requisite mental element of aiding and abetting is knowledge that the acts assist the commission of the specific crime of the principal perpetrator. For an accused to be convicted of abetting an offence, it is not necessary to prove that he had authority over the principal perpetrator. 
ICTR, Muhimana case, Judgment on Appeal, 21 May 2007, § 189.
International Criminal Tribunal for Rwanda
In the Karemera case before the ICTR in 2005, the accused, Édouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera, three senior members of the Mouvement révolutionnaire national pour le développement et la démocratie (MRND), were charged, inter alia, with genocide (punishable under Article 2 of the 1994 ICTR Statute), 
ICTR, Karemera case, Amended Indictment, 24 August 2005, Count 3.
crimes against humanity (punishable under Article 3 of the 1994 ICTR Statute), 
ICTR, Karemera case, Amended Indictment, 24 August 2005, §§ 67–73, Counts 5–6
and serious violations of common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II (punishable under Article 4 of the 1994 ICTR Statute), 
ICTR, Karemera case, Amended Indictment, 24 August 2005, §§ 74–80, Count 7.
for their role in a campaign to destroy the Tutsi population in Rwanda. 
ICTR, Karemera case, Amended Indictment, 24 August 2005, § 5.
According to the Prosecutor, the accused were “individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute of the Tribunal … which they planned, instigated, ordered, committed, or in whose planning, preparation, or execution they otherwise aided and abetted”. 
ICTR, Karemera case, Amended Indictment, 24 August 2005, § 4.
International Criminal Tribunal for Rwanda
In its judgment and sentence in the Bisengimana case in 2006, the ICTR Trial Chamber stated regarding individual criminal responsibility for aiding and abetting pursuant to Article 6(1) of the 1994 ICTR Statute:
31. Article 6 (1) reflects the principle that criminal responsibility for any crime in the Statute is incurred not only by individuals who physically commit the crime, but also by individuals who participate in and contribute to the commission of the crime in other ways, such as by aiding and abetting.
32. “Aiding” means assisting another to commit a crime. “Abetting” means facilitating, encouraging, advising or instigating the commission of a crime. In legal usage, including that of the Statute and of the case law of the Tribunal and the International Criminal Tribunal for the Former Yugoslavia (the “ICTY”), the two terms are so often used conjunctively that they are treated as a single broad legal concept.
33. Aiding and abetting is a form of accessory liability. The actus reus of the crime is not performed by the accused but by another person referred to as the principal offender. The accused’s participation may take place at the planning, preparation or execution stage of the crime and may take the form of a positive act or omission, occurring before or after the act of the principal offender. The Prosecution is required to demonstrate that the accused carried out an act of substantial practical assistance, encouragement, or moral support to the principal offender, culminating in the latter’s actual commission of the crime. While the assistance need not be indispensable to the crime, it must have a substantial effect on the commission of the crime.
34. Mere presence at the crime scene may constitute aiding and abetting where it is demonstrated to have a significant encouraging effect on the principal offender, particularly if the individual standing by was the superior of the principal offender or was otherwise in a position of authority. In those circumstances, an omission may constitute the actus reus of aiding and abetting, provided that this failure to act had a decisive effect on the commission of the crime.
35. However, it is not necessary that the person aiding and abetting the principal offender be present during the commission of the crime.
36. The mens rea of aiding and abetting is demonstrated by proof that the aider and abettor is aware that his act is assisting the commission of the crime by the principal offender. The aider and abettor must have known the intent of the principal offender, and although he need not know the precise offence being committed by the principal offender, he must be aware of the essential elements of the crime. With respect to an aider and abettor who is in a position of authority vis-à-vis the principal offender, his mens rea may be deduced from the fact that he knew that his presence would be interpreted by the principal offender as a sign of support or encouragement. 
ICTR, Bisengimana case, Judgment and Sentence, 13 April 2006, §§ 31–36.
International Criminal Tribunal for Rwanda
In its judgment in the Imanishimwe case in 2006, the ICTR Appeals Chamber stated the following requirements of aiding and abetting under Article 6(1) of the 1994 ICTR Statute:
To establish the material element (or actus reus) of aiding and abetting under Article 6(1) of the [1994 ICTR] Statute, it must be proven that the aider and abettor committed acts specifically aimed at assisting, encouraging, lending moral support for the perpetration of a specific crime, and that the said support had a substantial effect on the perpetration of the crime. The Appeals Chamber adds that the actus reus of aiding and abetting may, in certain circumstances, be perpetrated through an omission. The requisite mens rea is the fact that the aider and abettor knows that his acts assist in the commission of the specific crime of the principal. 
ICTR, Imanishimwe case, Judgment on Appeal, 7 July 2006, § 370.
International Criminal Tribunal for Rwanda
In its judgment in the Mpambara case in 2006, the ICTR Trial Chamber noted regarding modes of direct individual criminal responsibility under Article 6(1) of the 1994 ICTR Statute:
(i) Joint Criminal Enterprise
13. A joint criminal enterprise arises when two or more persons join in a common and shared purpose to