Participation in crimes in the jurisprudence of the ICTY and ICTR

The Statutes of the International Criminal Tribunal for the former Yugoslavia ¹ (ICTY) and the International Criminal Tribunal for Rwanda ² (ICTR) explicitly provide that these Tribunals are concerned with natural persons only. ³ Legal entities such as associations or organizations cannot be declared criminal as such, thereby excluding membership in such entities as a legal basis for criminal responsibility. ⁴ Articles 7(1)(3) and 6(1)(3) of the ICTY and ICTR Statutes, respectively, are the general provisions governing whether and through what mode of liability an accused may be held responsible for a crime within the jurisdiction of these Tribunals. The full text of these provisions reads as follows:

Individual Criminal Responsibility

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 [ICTY] Statute [and Articles 2 to 4 of the ICTR Statute] shall be individually responsible for the crime . …

The fact that any of the acts referred to in Articles 2 to 5 of the present Statute [and Articles 2 to 4 of the ICTR Statute] was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrator thereof. ⁵

The principle underlying the aforementioned provisions is that an individual is responsible for his or her acts and omissions. ⁶ That is to say, an individual may be held criminally responsible for the direct commission of a crime, whether as an individual or jointly, ⁷ or through his or her omissions with regard to the crimes of subordinates when under obligation to act. ⁸ This chapter uses a systematic analysis of the Tribunals’ case law to examine the subjective and objective elements of different modes of perpetration and participation in criminal conduct.