Elements of Accessorial Modes of Liability

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Elements of Accessorial Modes 
of Liability
International Humanitarian Law Series
VOLUME 38
Editors-in-Chief
H.E. Judge Sir Christopher Greenwood
Professor Timothy L.H. McCormack
Editorial Advisory Board
Professor Georges Abi-Saab
H.E. Judge George H. Aldrich
Madame Justice Louise Arbour
Professor Ove Bring
Professor John Dugard
Professor Dr. Horst Fischer
Dr. Hans-Peter Gasser
H.E. Judge Geza Herczegh
Professor Frits Kalshoven
Professor Ruth Lapidoth
Professor Gabrielle Kirk McDonald
H.E. Judge Th eodor Meron
Captain J. Ashley Roach
Professor Michael Schmitt
Professor Jiří Toman
Th e International Humanitarian Law Series is a series of monographs and edited vol-
umes which aims to promote scholarly analysis and discussion of both the theory and 
practice of the international legal regulation of armed confl ict.
Th e series explores substantive issues of International Humanitarian Law including,
– protection for victims of armed confl ict and regulation of the means and methods 
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– questions of application of the various legal regimes for the conduct of armed con-
fl ict
– issues relating to the implementation of International Humanitarian Law obliga-
tions
– national and international approaches to the enforcement of the law and
– the interactions between International Humanitarian Law and other related areas 
of international law such as Human Rights, Refugee Law, Arms Control and 
Disarmament Law, and International Criminal Law.
Th e titles published in this series are listed at brill.nl/ihul
http://brill.nl/ihul
Elements of Accessorial Modes 
of Liability
Article 25(3)(b) and (c) of the 
Rome Statute of the International Criminal Court
by
Sarah Finnin
LEIDEN • BOSTON
2012
issn 1389-6776
isbn 978 9004 22807 8 (hardback)
isbn 978 9004 22809 2 (e-book)
Copyright 2012 by Koninklijke Brill nv, Leiden, Th e Netherlands.
Koninklijke Brill nv incorporates the imprints brill, Global Oriental, Hotei Publishing, 
idc Publishers and Martinus Nijhoff Publishers.
All rights reserved. No part of this publication may be reproduced, translated, stored in 
a retrieval system, or transmitted in any form or by any means, electronic, mechanical, 
photocopying, recording or otherwise, without prior written permission from the publisher.
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provided that the appropriate fees are paid directly to Th e Copyright Clearance Center, 
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Fees are subject to change.
Th is book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
 
Finnin, Sarah.
 Elements of accessorial modes of liability : Article 25 (3)(b) and (c) of the Rome Statute of the 
International Criminal Court / by Sarah Finnin.
 p. cm.
 Includes index.
 ISBN 978-90-04-22807-8 (hardback : alk. paper) -- ISBN 978-90-04-22809-2 (e-book) 1. 
Rome Statute of the International Criminal Court (1998) 2. International Criminal Court. 
3. Criminal liability (International law) 4. Accomplices (International law) 5. Principals 
(International law) 6. International criminal courts--Rules and practice. I. Title.
 KZ7288.F56 2012
 345’.04--dc23
 2012028766
Dedicated to:
My parents, Janice and Leigh Finnin
We note with sadness the passing of two esteemed members of our Editorial 
Advisory Board – Antonio Cassese (01 January 1937 - 21 October 2011) and Leslie 
C. Green (06 November 1920 - 27 November 2011). Antonio and Leslie were out-
standing scholars and enthusiastic supporters of the ihl Series and both will be 
sorely missed.
Table of Contents
Foreword xiii
Preface xv
Table of Abbreviations xviii
Table of Instruments and Cases xix
Chapter One Introduction 1
Chapter Two Background 11
I Introduction 11
II Background to Article 25 of the Rome Statute 11
A Diff erent Models of Individual Criminal Responsibility 12
B Codifi cation of Individual Criminal Responsibility under 
International Law 14
III Introduction to Article 25 of the Rome Statute 20
A Th e Text of Article 25 20
B Modes of Liability under Article 25(3) 22
C Element Analysis Approach 26
D Identifying the Elements of Accessorial Modes of Liability 30
IV Methodology 31
A Methodology for Developing the Proposed Elements 31
1 Interpretation of the Language of the Rome Statute 31
2 Analysis of the Potential for, and the Appropriateness of, 
Adopting Elements Already Developed by Other Courts 
and Tribunals 33
3 Analysis of the Potential for, and the Appropriateness of, 
Drawing on General Principles of Domestic Criminal Law 36
(a) Common Law 38
(b) Civil Law 40
V Conclusion 41
viii Table of Contents
Chapter Th ree Accessorial Act 43
I Introduction 43
II Ordering 43
A Introduction 43
B Conduct Element 44
1 What Constitutes an ‘Order’ 44
2 What Constitutes the Giving of an Order 47
3 Conclusion 52
C Circumstance Elements 53
1 Features of the Accused 53
1 Nature of the Act Ordered 59
III Soliciting or Inducing 60
A Introduction 60
B Conduct Element 62
1 What Specifi c Conduct Might Constitute Soliciting or 
Inducing 62
2 Whether the Solicitation or Inducement Must Be Direct 
and Public 66
3 Conclusion 70
C Circumstance Elements 70
1 Features of the Accused 70
2 Nature of the Act Solicited/Induced 71
IV Aiding and Abetting 72
A Introduction 72
B Conduct Element 72
1 What Specifi c Conduct Might Constitute Aiding and 
Abetting 72
2 Tangible and Intangible Support 74
3 Providing the Means 80
4 Proximity to the Act of Commission 82
5 Conclusion 89
V Conclusion 90
Chapter Four Accessorial Object 93
I Introduction 93
II Introduction to Derivative Nature 94
A What Does ‘Derivative Nature’ Mean? 94
B Th e Impact of the Derivative Nature on Liability 95
III Th e Non-Derivative Approach 98
A Introduction 98
B Th e Consequences of this Approach 98
C Is this Approach Open under the Rome Statute? 99
IV Two Derivative Approaches 101
A Introduction 101
B Th e Accessorial Object under the Strict Derivative Approach 102
ixTable of Contents
C Th e Accessorial Object under the Partially Derivative Approach 106
1 Th e Distinction between Justifi cation and Excuse 106
2 Th e Accessorial Object 113
D Which Approach Is Open under the Rome Statute 114
E Which Approach Is Preferable 118
V Conclusion 119
Chapter Five Causation 123
I Causation and Accessorial Liability 123
II Jurisprudence of Previous International Courts and Tribunals 126
A Aiding and Abetting 126
B Ordering and Instigating 128
C Conclusion 130
III Requirement of a Successful Contribution 130
A Introduction 130
B Domestic Law Requires a Successful Contribution 130
C Metaphysical Objection to Causation in Cases of Accessorial 
Liability 133
D Conclusion 135
IV Th e Necessary Condition Test 137
A Introduction 137
B Underinclusiveness of the Test 139
1 Concurrent Overdetermination Cases 139
2 Pre-Emptive Overdetermination Cases 141
C Conclusion 143
V Th e Substantial Eff ect Test 143
A Introduction 143
B Limited Support for the Test in Domestic Jurisdictions and 
Commentary 144
C Vague, Circular and Subjective Nature of the Test 144
D Conclusion 146
VI Conclusion 146
Chapter Six Mental Elements 149
I Introduction 149
II Introduction to the Concept of Intent 151
A Gradations of Intent 151
B Direct Intent (in the First Degree) 153
C Oblique Intent, or Direct Intent in the Second Degree 155
D Recklessness and Dolus Eventualis 157
III Introduction to Article 30 160
A Intent and Knowledge 160
B Element Analysis Approach 161
C Defi nitions of ‘Intent’ 163
1 ‘Means to’ 163
x Table of Contents
2 ‘Aware it will occur in the ordinary course of events’ 166
D Defi nitions of ‘Knowledge’ 173
1 ‘Awareness that a circumstance exists’ 173
(a) Wilful Blindness 173
(b) Knowledge of Normative or Legal Circumstances 174
2 ‘Awareness that … a consequence will occur in the ordinary 
course of events’ 175
E Conclusion 175
IVExceptions to Article 30 176
A Interpretation of ‘Unless otherwise provided …’ 176
B Types of Exceptions to Article 30 180
1 Less Stringent Mental Elements 180
2 More Stringent Mental Elements 181
3 Additional Mental Elements 182
V Conclusion 184
Chapter Seven Proposed Mental Elements 187
I Introduction 187
II Conduct Elements 188
III Circumstance Elements 189
IV Consequence Elements 191
V Additional Mental Element 197
VI Conclusion 204
Chapter Eight Conclusion 205
I Introduction 205
II Liability of the Generals for Soliciting/Inducing 206
A Proposed Elements for Soliciting/Inducing 206
B Element 1—Conduct Element 207
C Element 2—Circumstance Element 208
D Element 3—Consequence Element 209
E Causation Requirement 211
F Conclusion 212
III Liability of Archer for Ordering 212
A Proposed Elements for Ordering 212
B Element 1—Conduct Element 213
C Element 2—Circumstance Element 213
D Element 3—Circumstance Element 214
E Element 4—Consequence Element 215
F Causation Requirement 215
G Conclusion 216
IV Liability of Banks for Aiding and Abetting 216
A Proposed Elements for Aiding and Abetting 216
B Element 1—Conduct Element 217
C Element 2—Consequence Element 218
xiTable of Contents
D Causation Requirement 218
E Element 3—Additional Mental Element 218
F Conclusion 219
V Conclusion 219
Appendices 222
Index 231
Foreword
I was delighted to be asked to contribute a foreword to this very creative and 
clearly written piece of work. It began as a PhD dissertation at the University 
of Melbourne, for which I was an external examiner. Sarah Finnin does a thor-
ough analysis of Article 25(3)(b) and (c) of the Rome Statute of the International 
Criminal Court (ICC). Th ese provisions deal respectively with the criminal 
responsibility of one who ‘orders, solicits or induces the commission’ of a crime 
within the jurisdiction of the Court, and with one who ‘aids, abets, or otherwise 
assists in its commission or attempted commission’. Using the methodology that 
the Preparatory Commission for the Court adopted in defi ning the substance 
of the crimes within the jurisdiction of the Court—the so-called ‘Elements of 
Crimes’—she undertakes some work that the Preparatory Commission aban-
doned. Specifi cally, she creates elements (physical and mental building blocks) 
for each of these modes of participation in paragraphs (b) and (c). She is bril-
liantly successful in this endeavor. Her work is likely to be of considerable value 
to scholars of the ICC and to practitioners and judges alike. I am very hopeful 
that the Assembly of States Parties to the Court will return to these issues and 
use her work as a very advanced draft for their adoption. If they don’t, I am sure 
that counsel and the judges will fi nd her suggestions extremely useful as they 
shape their arguments in the developing case law.
Sarah’s analysis entails remarkable familiarity with several bodies of knowl-
edge: the drafting history of the Rome Statute leading up to its adoption in 
1998 and of the Preparatory Commission (mostly between 1998 and 2000); the 
handful of issues so far decided by the ICC; the extensive and arguably relevant 
case law of the International Criminal Tribunals for the former Yugoslavia and 
Rwanda, the Special Court for Sierra Leone, Nuremberg and post-Nuremberg 
trials and the jurisprudence of several other international and part-international 
tribunals; the work of the International Law Commission on the Draft Code of 
xiv Foreword
Crimes against the Peace and Security of Mankind; secondary writing on all 
of these; and numerous works on comparative criminal law. What is marve-
lous about her work is the way she manages to weave all of this material into her 
narrative without getting lost in the detail. She keeps coming back to the main 
point: what the Statute says.
Roger S. Clark
Board of Governors Professor
Rutgers University School of Law
Camden
New Jersey
Preface
Th is volume is derived from my PhD thesis, submitted to the University of 
Melbourne in May 2011. Th e idea for a thesis on accessorial modes of liabil-
ity under international criminal law evolved from my interest in the tension 
between individual responsibility and collective guilt for international crimes, 
and the apparent preference of international criminal justice for ‘perpetrators’ far 
removed from the actual perpetration of the criminal act. My interest was drawn 
to the question of how to divide criminal responsibility amongst all those who 
have contributed to the same criminal act: those who plan the crimes, and those 
who carry out those plans; those who give the orders to commit crimes, and 
those who follow those orders; those who provide the means to commit crimes, 
and those who make use of such means. 
Th is topic has allowed me to catalogue the various factual scenarios which 
have brought individuals before international courts and tribunals, and thereby 
develop a theory of participation in international crimes in the form of ‘elements’ 
of accessorial modes of liability. It is hoped that the formulation of the proposed 
‘elements’ will provide guidance to the International Criminal Court over the 
coming years when it seeks to apply the provisions of its Statute which set out 
the accessorial modes of liability to the fi rst cases which come before it for trial. 
Th is will enable the Court to properly identify individuals who have made a sub-
stantial contribution to international crimes committed by others as accessories 
to such crimes, while ensuring that individuals who are not deserving of such 
categorisation remain free from criminal liability. 
Th roughout my PhD candidature, numerous people provided me with 
support, advice and comments on drafts. Most importantly, I would like to 
thank my supervisors. Professor Tim McCormack was my principal supervisor 
throughout my candidature, and showed great patience through many changes 
in topic and direction. Tim has had a considerable impact on my professional 
development since my time as an undergraduate law student, and has off ered me 
amazing opportunities for study, work and travel over the years. His warmth, 
kindness and generosity made my time at the Asia Pacifi c Centre for Military 
Law (APCML) both enjoyable and fruitful. 
xvi Peface
Professor Jenny Morgan, Associate Professor Andrew Mitchell and Dr 
Helen Durham acted as co-supervisors at diff erent periods throughout my can-
didature. Helen’s support and enthusiasm in the fi rst half of my candidature gave 
me the confi dence to tackle this diffi cult topic. I thank her for her ongoing inter-
est in my personal and professional development and her continued friendship. 
Th e willingness of Jenny and Andrew to come on board half way through my 
candidature, and to see my thesis through to completion, is greatly appreciated. 
Th eir invaluable advice and constructive criticism enabled me to make substan-
tial progress in my fi nal year in particular. 
Finally, Professor Markus Dubber from the University of Toronto Law 
Faculty kindly agreed to act as an external supervisor during the fi nal six months 
of my candidature. I benefi ted from fi ve weeks of research and writing at the 
University of Toronto under his supervision in late 2010. Th is trip was gener-
ously funded by a grant of Research Support Funds by the Offi ce for Research 
at the Melbourne Law School. I also benefi ted greatly from attendance at the 
Marie Curie Top Summer School in June–July 2009 in Th e Hague. I thank the 
Grotius Centre for International Legal Studies at Leiden University for funding 
and organising the program, and to the many participants (both students and 
speakers) for their interesting and thought-provoking presentations on various 
aspects of international criminal law.
A number of other academics at the University of Melbourne supported 
my research and professional development. Associate Professor Bruce ‘Ozzie’ 
Oswald CSC, Professor Gerry Simpson, Associate Professor AlisonDuxbury 
and Dr Kevin Heller acted as friends, advisors and mentors and I thank them for 
acting in such roles. Cathy Hutton, the Administrator of the APCML, provided 
friendship, administrative support, editorial advice and a welcoming environ-
ment throughout my time at the Centre. 
Th e University of Melbourne, and in particular the Melbourne Law School, 
has provided a welcoming and encouraging environment for my studies. Th e 
A O Capell prestigious scholarship allowed me to focus my energy on full-time 
study. Lucy O’Brien, Mas Generis, Domingo Cordoba and Dr Madeline Grey 
from the Melbourne Law School’s Offi ce for Research provided administrative 
support at the various milestones throughout my candidature. Professor Carolyn 
Evans and Associate Professor Sean Cooney, in their positions as Associate 
Deans of Research, gave counsel and assistance during my time as a PhD candi-
date. Professor Michael Crommelin, as Dean of the Law School, gave fi nancial 
and institutional support throughout my time as an undergraduate and post-
graduate student.
My fellow PhD students generously agreed to read and give feedback on 
parts of my thesis at various stages in its formation, and off ered immeasurable 
support over the years. In particular, I would like to thank the members of our 
study group, Michelle Lesh, Rain Liivoja, Róisín Burke, Anna Hood and Sasha 
Radin. My PhD examiners, Professor Roger Clark and Professor Albin Eser, 
took the time to conduct a thorough examination of my thesis, and provide kind 
comments on, and useful suggestions for improvements to, its content. I would 
xviiPreface
also like to thank my family for their substantial personal and fi nancial support 
throughout my many years of study. Finally, I would like to thank the editorial 
board of Martinus Nijhoff Publishers for agreeing to publish this thesis as part of 
the International Humanitarian Law series. 
Sarah Finnin
Table of Abbreviations
AFRC Armed Forces Revolutionary Council (Sierra Leone)
ALI American Law Institute
ASP Assembly of States Parties to the Rome Statute
CDF Civil Defense Forces (Sierra Leone)
GA General Assembly of the United Nations
ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former 
Yugoslavia
ILC International Law Commission
IMT International Military Tribunal (at Nuremberg)
IMTFE International Military Tribunal for the Far East (at 
Tokyo)
OKW German Armed Forces High Command
OTP Offi ce of the Prosecutor of the International Criminal 
Court
PrepCom Preparatory Commission of the International Criminal 
Court
RUF Revolutionary United Front (Sierra Leone)
SCSL Special Court for Sierra Leone
UN United Nations 
UNWCC United Nations War Crimes Commission
Table of Instruments and Cases
Table of Instruments
1954 ILC Draft Code of 
Off ences
International Law Commission, ‘Draft Code of 
Off ences against the Peace and Security of Mankind 
with Commentaries’ in ‘Report of the International 
Law Commission to the General Assembly Covering 
its Sixth Session, 3 June – 28 July 1954’ [1954] II Yearbook 
of the International Law Commission 140, 149
1991 ILC Draft Code of 
Crimes
International Law Commission, ‘Draft Code of 
Crimes against the Peace and Security of Mankind: 
Text of Draft Articles 3, 4, 5, 11, 14, 19 to 22 and 26, 
with Commentaries Th ereto and Commentary to 
Part Two as a Whole, as Provisionally Adopted by 
the Commission at its Forty-Th ird Session’ in ‘Report 
of the International Law Commission to the General 
Assembly on the Work of its Forty-Th ird Session, 
29 April – 19 July 1991’ [1991] II(2) Yearbook of the 
International Law Commission 1, 98
1996 ILC Draft Code of 
Crimes
International Law Commission, ‘Draft Code of 
Crimes against the Peace and Security of Mankind 
with Commentaries’ in ‘Report of the International 
Law Commission to the General Assembly on the 
Work of its Forty-Eighth Session, 6 May – 26 July 
1996’ [1996] II(2) Yearbook of the International Law 
Commission 1, 17
Control Council Law 
No 10
Control Council Law No 10: Punishment of Persons 
Guilty of War Crimes, Crimes against Peace and against 
Humanity, signed 20 December 1945, in Offi cial Gazette 
of the Control Council for Germany, No 3, Berlin, 31 
January 1946, 50–5
Elements Elements of Crimes, Doc No ICC-ASP/1/3 (adopted 9 
September 2002)
xx Table of Instruments and Cases
Final Act of the UN 
Diplomatic Conference
Final Act of the United Nations Diplomatic Conference of 
Plenipotentiaries on the Establishment of an International 
Criminal Court, UN Doc A/CONF.183/10, 17 July 1998
Geneva Convention I Geneva Convention for the Amelioration of the Condition 
of the Wounded and Sick in Armed Forces in the Field, 
opened for signature 12 August 1949, 75 UNTS 31 
(entered into force 21 October 1950)
Geneva Convention II Geneva Convention for the Amelioration of the Condition 
of Wounded, Sick and Shipwrecked Members of Armed 
Forces at Sea, opened for signature 12 August 1949, 75 
UNTS 85 (entered into force 21 October 1950)
Geneva Convention III Geneva Convention Relative to the Treatment of 
Prisoners of War, opened for signature 12 August 1949, 
75 UNTS 135 (entered into force 21 October 1950)
Geneva Convention IV Geneva Convention Relative to the Protection of Civilian 
Persons in Time of War, opened for signature 12 August 
1949, 75 UNTS 287 (entered into force 21 October 1950)
Genocide Convention Convention on the Prevention and Punishment of the 
Crime of Genocide, opened for signature 9 December 
1948, 78 UNTS 277 (entered into force 12 January 1951)
ICTR Statute Statute of the International Criminal Tribunal for 
Rwanda, adopted 8 November 1994, annexed to SC 
Res 955 (1994), UN Doc S/RES/955 (8 November 1994)
ICTY Statute Statute of the International Criminal Tribunal for the 
former Yugoslavia, adopted 25 May 1993, annexed to 
SC Res 827 (1993), UN Doc S/RES/827 (25 May 1993)
Nuremberg Charter Charter of the International Military Tribunal, annexed 
to Agreement for the Prosecution and Punishment of the 
Major War Criminals of the European Axis, signed in 
London on 8 August 1945, 82 UNTS 279 
Nuremberg Principles International Law Commission, ‘Principles of 
International Law Recognized in the Charter of 
the Nürnberg Tribunal and in the Judgment of 
the Tribunal, with Commentaries’ in ‘Report of 
the International Law Commission to the General 
Assembly Covering its Second Session, 5 June – 29 
July 1950’ [1950] II Yearbook of the International Law 
Commission 364, 374
Additional Protocol I Protocol Additional to the Geneva Conventions of 12 
August 1949, and Relating to the Protection of Victims 
of International Armed Confl icts, opened for signature 
12 December 1977, 1125 UNTS 3 (entered into force 7 
December 1978)
xxiTable of Instruments and Cases
Rome Statute Rome Statute of the International Criminal Court, 
opened for signature 17 July 1998, 2187 UNTS 3 
(entered into force 1 July 2002)
SCSL Statute Statute of the Special Court for Sierra Leone, adopted 
16 January 2002, annexed to Agreement between 
the United Nations and the Government of Sierra 
Leone on the Establishment of a Special Court for 
Sierra Leone, signed 16 January 2002, reproduced in 
Appendix II to Report of the Planning Mission on the 
Establishment of the Special Court for Sierra Leone, UN 
Doc S/2002/246, 8 March 2002
Tokyo Charter Charter of the International Military Tribunal for the Far 
East, signed in Tokyo on 19 January 1946, amended 26 
April 1946, TIAS 1589, 4 Bevans 20 
VCLT Vienna Convention on the Law of Treaties, opened for 
signature 23 May 1969, 1155 UNTS 331 (entered into 
force 27 January 1980)
xxii Table of Instruments and Cases
Table of Cases
Abbaye Ardenne Trial of SS Brigadeführer Kurt Meyer (Canadian 
Military Court, Aurich, Germany, 10–28 December 
1945), reported as Case No 22 in United Nations War 
Crimes Commission, Law Reports of Trials of WarCriminals (1948) vol IV, 97
Abu Garda Confi rmation Prosecutor v Bahar Idriss Abu Garda (Decision on the 
Confi rmation of Charges) (International Criminal 
Court, Pre-Trial Chamber I, Case No ICC-02/05-
02/09, 8 February 2010)
AFRC TJ Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara 
and Santigie Borbor Kanu (Trial Judgment) (Special 
Court for Sierra Leone, Trial Chamber II, Case No 
SCSL-04-16, 20 June 2007)
AFRC AJ Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara 
and Santigie Borbor Kanu (Appeal Judgment) (Special 
Court for Sierra Leone, Appeals Chamber, Case No 
SCSL-04-16, 22 February 2008)
Akayesu TJ Prosecutor v Jean-Paul Akayesu (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-96-4, 2 September 1998)
Akayesu AJ Prosecutor v Jean-Paul Akayesu (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-96-4, 1 June 2001)
Aleksovski TJ Prosecutor v Zlatko Aleksovski (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-95-14/1, 25 
June 1999)
Aleksovski AJ Prosecutor v Zlatko Aleksovski (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-95-14/1, 
24 March 2000)
Almelo Trial of Otto Sandrock and Th ree Others (British Military 
Court for the Trial of War Criminals, Almelo, 
Holland, 24–26 November 1945), reported as Case No 
3 in United Nations War Crimes Commission, Law 
Reports of Trials of War Criminals (1947) vol I, 35
Bagaragaza TS Prosecutor v Michel Bagaragaza (Trial Sentencing 
Judgment) (International Criminal Tribunal for 
Rwanda, Trial Chamber III, Case No ICTR-05-86, 
17 November 2009)
Bagilishema TJ Prosecutor v Ignace Bagilishema (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-95-1A, 7 June 2001)
xxiiiTable of Instruments and Cases
Bagosora TJ Prosecutor v Th éoneste Bagosora, Gratien Kabilligi, Aloys 
Ntabakuze and Anatole Nsengiyumva (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-98-41, 18 December 2008)
Banda Confi rmation Prosecutor v Abdallah Banda Abakaer Nourain and Saleh 
Mohammed Jerbo Jamus (Decision on the Confi rmation 
of Charges) (International Criminal Court, Pre-Trial 
Chamber I, Case No ICC-02/05-03/09, 7 March 2011)
Bashir Arrest Warrant 
Decision
Prosecutor v Omar Hassan Ahmad Al Bashir (Decision 
on the Prosecutor’s Application for a Warrant of Arrest) 
(International Criminal Court, Pre-Trial Chamber I, 
Case No ICC-02/05-01/09, 4 March 2009)
Bemba Confi rmation Prosecutor v Jean-Pierre Bemba Gombo (Decision 
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on 
the Charges of the Prosecutor against Jean-Pierre Bemba 
Gombo) (International Criminal Court, Pre-Trial 
Chamber II, Case No ICC-01/05-01/08, 15 June 2009) 
Bisengimana TJ Prosecutor v Paul Bisengimana (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-00-60, 13 April 2006)
Blagojević 98bisT Prosecutor v Vidoje Blagojević and Dragan Jokić (Trial 
Judgment on Motions for Acquittal Pursuant to Rule 
98bis) (International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-02-60, 5 
April 2004)
Blagojević TJ Prosecutor v Vidoje Blagojević and Dragan Jokić (Trial 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Trial Chamber I, Case No IT-02-
60, 17 January 2005)
Blagojević Appeal 
Transcript
Prosecutor v Vidoje Blagojević and Dragan Jokić (Appeal 
Transcript) (International Criminal Tribunal for 
the former Yugoslavia, Appeals Chamber, Case No 
IT-02-60, 5 December 2006) 
Blagojević AJ Prosecutor v Vidoje Blagojević and Dragan Jokić (Appeal 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Appeals Chamber, Case No 
IT-02-60, 9 May 2007)
Blaškić TJ Prosecutor v Tihomir Blaškić (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-95-14, 3 
March 2000)
Blaškić AJ Prosecutor v Tihomir Blaškić (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-95-14, 29 
July 2004)
xxiv Table of Instruments and Cases
Boškoski TJ Prosecutor v Ljube Boškoski and Johan Tarčulovski (Trial 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Trial Chamber II, Case No IT-04-
82, 10 July 2008)
Boškoski AJ Prosecutor v Ljube Boškoski and Johan Tarčulovski 
(Appeal Judgment) (International Criminal Tribunal 
for the former Yugoslavia, Appeals Chamber, Case 
No IT-04-82, 19 May 2010)
Brđanin 98bisT Prosecutor v Radoslav Brđanin (Trial Decision on Motion 
for Acquittal Pursuant to Rule 98bis) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber II, Case No IT-99-36, 28 November 2003)
Brđanin TJ Prosecutor v Radoslav Brđanin (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-99-36, 1 
September 2004)
Brđanin AJ Prosecutor v Radoslav Brđanin (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-99-36, 3 
April 2007)
Buck Trial of Karl Buck and Ten Others (British Military 
Court, Wuppertal, Germany, 6–10 May 1946), 
reported as Case No 29 in United Nations War Crimes 
Commission, Law Reports of Trials of War Criminals 
(1948) vol V, 39
CDF TJ Prosecutor v Moinina Fofana and Allieu Kondewa (Trial 
Judgment) (Special Court for Sierra Leone, Trial 
Chamber I, Case No SCSL-04-14, 2 August 2007)
Čelebići TJ Prosecutor v Zejnil Delalić, Zdravko Mucić, Hazim 
Delić and Esad Lanždo (Trial Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber II, Case No IT-96-21, 16 November 1998)
Đorđević TJ Prosecutor v Vlastimir Đorđević (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-05-87/1, 23 
February 2011)
Dostler Trial of General Anton Dostler, Commander of the 
75th German Army Corps (United States Military 
Commission, Rome, 8–12 October 1945), reported 
as Case No 2 in United Nations War Crimes 
Commission, Law Reports of Trials of War Criminals 
(1947) vol I, 22
xxvTable of Instruments and Cases
Einsatzgruppen United States v Otto Ohlendorf et al (Opinion and 
Judgment), Case No 9 in Trials of War Criminals before 
the Nuernberg Military Tribunals under Control Council 
No 10, Nuernberg, October 1946 – April 1949 (1950) vol 
IV, 411
Essen Lynching Trial of Erich Heyer and Six Others (British Military 
Court for the Trial of War Criminals, Essen, 18–19 
and 21–22 December 1945), reported as Case No 8 
in United Nations War Crimes Commission, Law 
Reports of Trials of War Criminals (1947) vol I, 88
Flick United States v Friedrich Flick et al (Opinion and 
Judgment), Case No 5 in Trials of War Criminals before 
the Nuernberg Military Tribunals under Control Council 
No 10, Nuernberg, October 1946 – April 1949 (1950) vol 
VI, 1187
Furundžija TJ Prosecutor v Anto Furundžija (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-95-17/1, 10 
December 1998)
Gacumbitsi TJ Prosecutor v Sylvestre Gacumbitsi (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber III, Case No ICTR-01-64, 17 June 2004)
Gacumbitsi AJ Prosecutor v Sylvestre Gacumbitsi (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-01-64, 7 July 2006)
Galić TJ Prosecutor v Stanislav Galić (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-98-29, 5 
December 2003)
Galić AJ Prosecutor v Stanislav Galić (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-98-29, 30 
November 2006)
Haradinaj TJ Prosecutor v Ramush Haradinaj, Idriz Balaj and LahiBrahimaj (Trial Judgment) (International Criminal 
Tribunal for the former Yugoslavia, Trial Chamber I, 
Case No IT-04-84, 3 April 2008)
Haradinaj AJ Prosecutor v Ramush Haradinaj, Idriz Balaj and Lahi 
Brahimaj (Appeal Judgment) (International Criminal 
Tribunal for the former Yugoslavia, Appeals Chamber, 
Case No IT-04-84, 19 July 2010)
xxvi Table of Instruments and Cases
Harun Arrest Warrant 
Decision
Prosecutor v Ahmad Muhammad Harun and Ali 
Muhammad Al Abd-Al-Rahman (‘Ali Kushayb’) 
(Decision on the Prosecution Application under Article 
58(7) of the Statute) (International Criminal Court, 
Pre-Trial Chamber I, Case No ICC-02/05-01/07, 27 
April 2007)
Hategekimana TJ Prosecutor v Ildephonse Hategekimana (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-00-55B, 6 December 
2010)
Hechingen Deportation S et al (Hechingen, Judgment of 28 June 1947, Kls 23/47) 
translated by Iain L Fraser in ‘Modes of Participation 
in Crimes against Humanity: Th e Hechingen and 
Haigerlock Case’ (2009) 7 Journal of International 
Criminal Justice 131 
High Command United States v Wilhelm von Leeb et al (Judgment), Case 
No 12 in Trials of War Criminals before the Nuernberg 
Military Tribunals under Control Council No 10, 
Nuernberg, October 1946 – April 1949 (1950) vol XI, 462
Hostage United States v Wilhelm List et al (Judgment), Case No 7 
in Trials of War Criminals before the Nuernberg Military 
Tribunals under Control Council No 10, Nuernberg, 
October 1946 – April 1949 (1950) vol XI, 1230
Kajelijeli TJ Prosecutor v Juvénal Kajelijeli (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-98-44A, 1 December 
2003)
Kalimanzira TJ Prosecutor v Callixte Kalimanzira (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber III, Case No ICTR-05-88, 22 June 2009)
Kalimanzira AJ Prosecutor v Callixte Kalimanzira (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-05-88, 20 October 
2010)
Kamuhanda TJ Prosecutor v Jean de Dieu Kamuhanda (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-99-54, 22 January 2004)
Kamuhanda AJ Prosecutor v Jean de Dieu Kamuhanda (Appeal 
Judgment) (International Criminal Tribunal for 
Rwanda, Appeals Chamber, Case No ICTR-99-54A, 
19 September 2005)
Kanyarukiga TJ Prosecutor v Gaspard Kanyarukiga (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-2002-78, 1 November 
2010)
xxviiTable of Instruments and Cases
Karera TJ Prosecutor v François Karera (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-01-74, 7 December 2007)
Karera AJ Prosecutor v François Karera (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-01-74, 2 February 
2009)
Katanga Confi rmation Prosecutor v Germain Katanga and Mathieu Ngudjolo 
Chui (Decision on the Confi rmation of Charges) 
(International Criminal Court, Pre-Trial Chamber I, 
Case No ICC-01/04-01/07, 30 September 2008)
Kayishema TJ Prosecutor v Clément Kayishema and Obed Ruzindana 
(Trial Judgment) (International Criminal Tribunal for 
Rwanda, Trial Chamber II, Case No ICTR-95-1, 21 
May 1999)
Kayishema AJ Prosecutor v Clément Kayishema and Obed Ruzindana 
(Appeal Judgment) (International Criminal Tribunal 
for Rwanda, Appeals Chamber, Case No ICTR-95-1, 
1 June 2001)
Kordić TJ Prosecutor v Dario Kordić and Mario Čerkez (Trial 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Trial Chamber III, Case No 
IT-95-14/2, 26 February 2001)
Kordić AJ Prosecutor v Dario Kordić and Mario Čerkez (Appeal 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Appeals Chamber, Case No IT-95-
14/2, 17 December 2004)
Krajišnik TJ Prosecutor v Momçilo Krajišnik (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-00-39, 27 
September 2006)
Kronjelac TJ Prosecutor v Milorad Krnojelac (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-97-25, 15 
March 2002)
Kronjelac AJ Prosecutor v Milorad Krnojelac (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-97-25, 17 
September 2003)
Krstić TJ Prosecutor v Radislav Krstić (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-98-33, 2 
August 2001)
xxviii Table of Instruments and Cases
Krstić AJ Prosecutor v Radislav Krstić (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-98-33, 19 
April 2004)
Kunarac TJ Prosecutor v Dragoljub Kunarac, Radomir Kovač 
and Zoran Vuković (Trial Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber II, Case Nos IT-96-23 and 23/1, 22 February 
2001)
Kupreškić TJ Prosecutor v Zoran Kupreškić, Mirjan Kupreškić, Vlatko 
Kupreškić, Drago Josipović, Dragan Papić and Vladimir 
Šantić (Trial Judgment) (International Criminal 
Tribunal for the former Yugoslavia, Trial Chamber II, 
Case No IT-95-16, 14 January 2000)
Kvočka TJ Prosecutor v Miroslav Kvočka, Milojica Kos, Mlađo 
Radić, Zoran Žigić and Dragoljub Prcać (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-98-30/1, 2 
November 2001)
Kvočka AJ Prosecutor v Miroslav Kvočka, Milojica Kos, Mlađo 
Radić, Zoran Žigić and Dragoljub Prcać (Appeal 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Appeals Chamber, Case No 
IT-98-30/1, 28 February 2005)
Limaj TJ Prosecutor v Fatmir Limaj, Haradin Bala and Isak 
Musliu (Trial Judgment) (International Criminal 
Tribunal for the former Yugoslavia, Trial Chamber II, 
Case No IT-03-66, 30 November 2005)
Lubanga Confi rmation Prosecutor v Th omas Lubanga Dyilo (Decision on 
Confi rmation of Charges) (International Criminal 
Court, Pre-Trial Chamber I, Case No ICC/01/04-
01/06, 29 January 2007)
Lubanga Jurisdiction 
Appeals Decision
Prosecutor v Th omas Lubanga Dyilo (Judgment on the 
Appeal of Mr Th omas Lubanga Dyilo against the Decision 
on the Defence Challenge to the Jurisdiction of the Court 
pursuant to Article 19(2)(a) of the Statute of 3 October 2006) 
(International Criminal Court, Appeals Chamber, 
Case No ICC-01/04-01/06, 14 December 2006)
Lubanga Witness 
Decision
Prosecutor v Th omas Lubanga Dyilo (Decision Regarding 
the Practices Used to Prepare and Familiarise Witnesses 
for Giving Testimony at Trial) (International Criminal 
Court, Trial Chamber I, Case No ICC-01/04-01/06, 
30 November 2007)
xxixTable of Instruments and Cases
Lukić TJ Prosecutor v Milan Lukić and Sredoje Lukić (Trial 
Judgment) (International Criminal Tribunal for the 
former Yugoslavia, Trial Chamber III, Case No 
IT-98-32/1, 20 July 2009)
Martić TJ Prosecutor v Milan Martić (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber I, Case No IT-95-11, 12 
June 2007)
Mbarushimana Arrest 
Warrant Decision
Prosecutor v Callixte Mbarushimana (Decision on 
the Prosecutor’s Application for a Warrant of Arrest) 
(International Criminal Court, Pre-Trial Chamber I, 
Case No ICC-01/04-01/10, 28 September 2010)
Milošević TJ Prosecutor v Dragomir Milošević (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber III, Case No IT-98-29/1, 
12 December 2007)
Milošević AJ Prosecutor v Dragomir Milošević (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-98-29/1, 
12 November 2009)
Ministries United States v Ernst von Weizsaecker et al (Judgment), 
Case No 11 in Trials of War Criminals before the 
Nuernberg Military Tribunals under Control Council No 
10, Nuernberg, October 1946 – April 1949 (1950)vol XIV, 
308
Mpambara TJ Prosecutor v Jean Mpambara (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-01-65, 11 September 2006)
Mrkšić TJ Prosecutor v Mile Mrkšić, Miroslav Radić and Veselin 
Šljivančanin (Trial Judgment) (International Criminal 
Tribunal for the former Yugoslavia, Trial Chamber II, 
Case No IT-95-13/1, 27 September 2007)
Mrkšić AJ Prosecutor v Mile Mrkšić, Miroslav Radić and Veselin 
Šljivančanin (Appeal Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Appeals 
Chamber, Case No IT-95-13/1, 5 May 2009)
Muhimana TJ Prosecutor v Emmanuel Muhimana (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-01-71, 15 July 2004)
Muhimana AJ Prosecutor v Emmanuel Muhimana (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-01-71, 21 May 
2007)
xxx Table of Instruments and Cases
Musema TJ Prosecutor v Alfred Musema (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-96-13, 27 January 2000)
Muvunyi TJ Prosecutor v Th arcisse Muvunyi (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-00-55, 12 September 
2006)
Muvunyi AJ Prosecutor v Th arcisse Muvunyi (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-00-55, 29 August 
2008)
Nahimana TJ Prosecutor v Ferdinand Nahimana, Jean-Bosco 
Barayagwiza and Hassan Ngeze (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-99-52, 3 December 2003)
Nahimana AJ Prosecutor v Ferdinand Nahimana, Jean-Bosco 
Barayagwiza and Hassan Ngeze (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, Appeals 
Chamber, Case No ICTR-99-52, 28 November 2007)
Naletilić TJ Prosecutor v Mladen Naletilić, aka ‘Tuta’, and Vinko 
Martinović, aka ‘Stela’ (Trial Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber I, Case No IT-98-34, 31 March 2003)
Ndindabahizi TJ Prosecutor v Emmanuel Ndindabahizi (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-01-71, 15 July 2004)
Ndindabahizi AJ Prosecutor v Emmanuel Ndindabahizi (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-01-71, 16 January 
2007)
Niyitegeka TJ Prosecutor v Eliézer Niyitegeka (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-96-14, 16 May 2003)
Nsengimana TJ Prosecutor v Hormisdas Nsengimana (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-01-69, 17 November 2009)
Ntagerura TJ Prosecutor v André Ntagerura, Emmanuel Bagambiki and 
Samuel Imanishimwe (Trial Judgment) (International 
Criminal Tribunal for Rwanda, Trial Chamber III, 
Case No ICTR-99-46, 25 February 2004)
Ntagerura AJ Prosecutor v André Ntagerura, Emmanuel Bagambiki and 
Samuel Imanishimwe (Appeal Judgment) (International 
Criminal Tribunal for Rwanda, Appeals Chamber, 
Case No ICTR-99-46, 7 July 2006)
xxxiTable of Instruments and Cases
Ntakirutimana TJ Prosecutor v Elizaphan Ntakirutimana and Gérard 
Ntakirutimana (Trial Judgment) (International 
Criminal Tribunal for Rwanda, Trial Chamber I, 
Case Nos ICTR-96-10 and 17, 21 February 2003)
Ntakirutimana AJ Prosecutor v Elizaphan Ntakirutimana and Gérard 
Ntakirutimana (Appeal Judgment) (International 
Criminal Tribunal for Rwanda, Appeals Chamber, 
Case Nos ICTR-96-10 and 17, 13 December 2004)
Nuremberg Indictment United States et al v Hermann Wilhelm Göring et al in 
Trial of the Major War Criminals before the International 
Military Tribunal, Nuremberg, 14 November 1945 – 1 
October 1946 (1947) vol I, 27
Nuremberg Judgment United States et al v Hermann Wilhelm Göring et al in 
Trial of the Major War Criminals before the International 
Military Tribunal, Nuremberg, 14 November 1945 – 1 
October 1946 (1947) vol I, 171
Nzabirinda TS Prosecutor v Joseph Nzabirinda (Trial Sentencing 
Judgment) (International Criminal Tribunal for 
Rwanda, Trial Chamber II, Case No ICTR-01-77, 23 
February 2007)
Orić TJ Prosecutor v Naser Orić (Trial Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber II, Case No IT-03-68, 30 June 2006)
Orić AJ Prosecutor v Naser Orić (Appeal Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Appeals 
Chamber, Case No IT-03-68, 3 July 2008)
Pohl United States v Oswald Pohl et al (Opinion and 
Judgment), Case No 4 in Trials of War Criminals before 
the Nuernberg Military Tribunals under Control Council 
No 10, Nuernberg, October 1946 – April 1949 (1950) vol 
V, 958
Popović TJ Prosecutor v Vujadin Popović, Ljubiša Beara, Drago 
Nikolić, Ljubomir Borovčanin, Radivoje Miletić, 
Milan Gvero and Vinko Pandurević (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-05-88, 10 
June 2010)
Rauer Trial of Major Karl Rauer and Six Others (British 
Military Court, Wuppertal, Germany, 18 February 
1946), reported as Case No 23 in United Nations War 
Crimes Commission, Law Reports of Trials of War 
Criminals (1948) vol IV, 113
Renzaho TJ Prosecutor v Th arcisse Renzaho (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-97-31, 14 July 2009)
xxxii Table of Instruments and Cases
Rohde Trial of Werner Rohde and Eight Others (British 
Military Court, Wuppertal, 29 May – 1 June 1946), 
reported as Case No 31 in United Nations War Crimes 
Commission, Law Reports of Trials of War Criminals 
(1948) vol V, 54
RUF TJ Prosecutor v Issa Hassan Sesay, Morris Kallon and 
Augustine Gbao (Trial Judgment) (Special Court for 
Sierra Leone, Trial Chamber I, Case No SCSL-04-15, 
2 March 2009)
Rukundo TJ Prosecutor v Emmanuel Rukundo (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber II, Case No ICTR-01-70, 27 February 2009)
Rutaganda TJ Prosecutor v Georges Anderson Nderubumwe Rutaganda 
(Trial Judgment) (International Criminal Tribunal for 
Rwanda, Trial Chamber I, Case No ICTR-96-3, 6 
December 1999)
Rutaganira TJ Prosecutor v Vincent Rutaganira (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber III, Case No ICTR-95-1C, 14 March 2005)
Šainović TJ Prosecutor v Milan Milutinović, Nikola Šainović, 
Dragoljub Ojdanić, Nebojša Pavković, Vladimir 
Lazarević and Sreten Lukić (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber III, Case No IT-05-87, 26 
February 2009)
Semanza TJ Prosecutor v Laurent Semanza (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber III, Case No ICTR-97-20, 15 May 2003)
Semanza AJ Prosecutor v Laurent Semanza (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-97-20, 20 May 
2005)
Seromba TJ Prosecutor v Athanase Seromba (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber III, Case No ICTR-01-66, 13 December 
2006)
Seromba AJ Prosecutor v Athanase Seromba (Appeal Judgment) 
(International Criminal Tribunal for Rwanda, 
Appeals Chamber, Case No ICTR-01-66, 12 March 
2008)
Setako TJ Prosecutor v Ephrem Setako (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber I, Case No ICTR-04-81, 25 February 2010)
xxxiiiTable of Instruments and Cases
Schonfeld Trial of Franz Schonfeld and Nine Others (British 
Military Court, Essen, 11–26 June 1946), reported 
as Case No 66 in United Nations War Crimes 
Commission, Law Reports of Trials of War Criminals 
(1949) vol XI, 64–73 
Simić TJ Prosecutor v Blagoje Simić, Miroslav Tadić and Simo 
Zarić (Trial Judgment) (International Criminal 
Tribunal for the former Yugoslavia, Trial Chamber II, 
Case No IT-95-9, 17 October 2003)
Simić AJ Prosecutor v Blagoje Simić, Miroslav Tadić and Simo 
Zarić (Appeal Judgment)(International Criminal 
Tribunal for the former Yugoslavia, Appeals Chamber, 
Case No IT-95-9, 28 November 2006)
Stakić 98bisT Prosecutor v Milomir Stakić (Trial Decision on Rule 
98bis Motion for Judgment of Acquittal) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber II, Case No IT-97-24, 31 October 2002)
Stakić TJ Prosecutor v Milomir Stakić (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-97-24, 31 
July 2003)
Stalag Luft III Trial of Max Wielen and 17 Others (British Military 
Court, Hamburg, Germany, 1 July – 3 September 
1947), reported as Case No 62 United Nations War 
Crimes Commission, Law Reports of Trials of War 
Criminals (1949) vol XI, 31 
Strugar 98bisT Prosecutor v Pavle Strugar (Trial Decision on Defence 
Motion Requesting Judgment of Acquittal Pursuant to 
Rule 98bis) (International Criminal Tribunal for the 
former Yugoslavia, Trial Chamber II, Case No IT-01-
42, 21 June 2004)
Strugar TJ Prosecutor v Pavle Strugar (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-01-42, 31 
January 2005)
Tadić TJ Prosecutor v Duško Tadić (Trial Judgment) (International 
Criminal Tribunal for the former Yugoslavia, Trial 
Chamber II, Case No IT-94-1, 7 May 1997)
Tadić AJ Prosecutor v Duško Tadić (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-94-1, 15 
July 1999)
Taylor 98T Prosecutor v Charles Ghankay Taylor (Trial Transcript) 
(Special Court for Sierra Leone, Trial Chamber II, 
Case No SCSL-2003-01, 4 May 2009)
xxxiv Table of Instruments and Cases
Vasiljević TJ Prosecutor v Mitar Vasiljević (Trial Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Trial Chamber II, Case No IT-98-32, 29 
November 2002)
Vasiljević AJ Prosecutor v Mitar Vasiljević (Appeal Judgment) 
(International Criminal Tribunal for the former 
Yugoslavia, Appeals Chamber, Case No IT-98-32, 25 
February 2004)
von Falkenhorst Trial of Generaloberst Nickolaus von Falkenhorst (British 
Military Court, Brunswick, 29 July – 2 August 1946), 
reported as Case No 61 in United Nations War Crimes 
Commission, Law Reports of Trials of War Criminals 
(1949) vol XI, 18
Zigiranyirazo TJ Prosecutor v Protais Zigiranyirazo (Trial Judgment) 
(International Criminal Tribunal for Rwanda, Trial 
Chamber III, Case No ICTR-01-73, 18 December 
2008)
Zyklon B Trial of Bruno Tesch and Two Others (British Military 
Court, Hamburg, 1–8 March 1946), reported as Case 
No 9 in United Nations War Crimes Commission, 
Law Reports of Trials of War Criminals (1947) vol I, 93
Chapter One
Introduction 
Th e euthanasia program, serving as the prototype for the extermination of mil-
lions that was to follow, demonstrated how, through fragmentation of authority 
and tasks, it was possible to fashion a murder machine. Hitler had enunci-
ated an off hand, extralegal decree, and had not wanted to be bothered about it 
again. Brandt had ordered the ‘scientifi c’ implementation of the program and, 
like Hitler, wished to hear no complaints. Th e directors and personnel of insti-
tutions rationalized that matters were out of their hands and that they were 
just fi lling out questionnaires for the ‘experts’ in Berlin, though in reality each 
form was the equivalent of a death warrant. Th e specious ‘experts’ perused the 
questionnaires only to cull out prominent persons that might have been acci-
dentally included, then passed them on to Himmler’s myrmidons, who trans-
ported the affl icted to the annihilation installations. Th e personnel at the end 
of the line excused themselves on the basis that they were under compulsion, 
had no power of decision, and were merely performing a function. Th ousands 
of people were involved, but each considered himself nothing but a cog in the 
machine and reasoned that it was the machine, not he, that was responsible.1
Th is quotation exposes the diffi culty faced by international courts: how can 
specifi c individuals be held criminally responsible for crimes committed by 
groups? International crimes that come before such courts constitute the gravest 
of off ences, and typically involve hundreds of perpetrators and an even higher 
number of victims and witnesses.2 Furthermore, the individual criminal acts 
which occur in this context cannot be treated as isolated or sporadic events, as 
they often represent a concerted eff ort that extends over a number of years and 
across an entire region. As the Trial Chamber of the International Criminal 
Tribunal for the former Yugoslavia (ICTY) noted in the Tadić case, ‘[m]ost of the 
time these crimes do not result from the criminal propensity of single individuals 
but constitute manifestations of collective criminality’.3 A Special Rapporteur of 
the International Law Commission (ILC) has stated: 
1 Robert Conot, Justice at Nuremberg (1993) 210–11.
2 Consider the Einsatzgruppen trial, where ‘twenty-three men [were] brought into 
court to answer to the charge of destroying over one million of their fellow human 
beings’: Einsatzgruppen at 412. 
3 Tadić TJ at [191]. 
2 Chapter One
Even though criminal responsibility is in principle based on individual and 
identifi able acts attributable to a specifi c perpetrator, it should not be forgotten 
that this is an area in which most actions are undertaken or executed jointly. 
Groups and organizations are the privileged means for perpetrating mass 
crimes … and it is sometimes diffi cult to isolate the role of each person.4 
Similarly, Ambos states:
It must not be overlooked … that criminal attribution in international criminal 
law has to be distinguished from attribution in national criminal law: while in 
the latter case normally a concrete criminal result caused by a person’s individ-
ual act is punished, international criminal law creates liability for acts commit-
ted in a collective context and systematic manner; consequently the individual’s 
own contribution to the harmful result is not always readily apparent.5
As a signifi cant proportion of the population may be somehow implicated in the 
atrocities, individual responsibility for international crimes manifests itself in a 
variety of ways and to varying degrees. Th e international criminal justice system 
requires, however, that responsibility for atrocities be allocated, calibrated or 
‘localised’6 amongst those individuals involved; individuals who have:
• orchestrated or planned mass crimes (eg political leaders);
• ordered the commission of mass crimes (eg military commanders);
• provided the means to commit mass crimes (eg weapons manufacturers);
• perpetrated mass crimes directly (eg foot soldiers or prison guards); 
• incited violence (eg media or religious leaders); or
• supported the crimes of the regime through active encouragement or passive 
acquiescence (eg so-called ‘innocent’ bystanders).
Th is is particularly the case when considering the crimes which come before the 
International Criminal Court (ICC or ‘the Court’), because of the ways in which 
its jurisdiction is limited by the Rome Statute of the International Criminal 
4 Doudou Th iam, Special Rapporteur, ‘Fourth Report on the Draft Code of Off ences 
against the Peace and Security of Mankind’ (11 March 1986), reprinted in [1986] 
II(1) Yearbook of the International Law Commission 53, 68. 
5 Kai Ambos, ‘Article 25: Individual Criminal Responsibility’ in Otto Triff terer (ed), 
Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, 
Article by Article (2nd ed, 2008) 743, 746. Similarly, Fletcher states that while the 
Rome Statute ‘creates the impression that it does not diff er in structure from any 
ordinary criminal code’, the crimes within the jurisdiction of the Court ‘are deeds 
that by their very nature are committed by groups, and typically against individuals 
as members of groups’. He goeson, ‘[i]t is true that as a formal matter only indi-
viduals are prosecuted, but they are prosecuted for crimes committed by and in the 
name of the groups they represent’: George Fletcher, Th e Grammar of Criminal Law: 
American, Comparative, and International: Volume 1, Foundations (2007) 332–3.
6 As it is referred to by Hannah Arendt, On Violence (1970) 38.
3Introduction
Court (‘Rome Statute’). Th e Preamble to the Rome Statute emphasises that the 
Court is to have jurisdiction only over ‘the most serious crimes of concern to the 
international community’.7 In addition, the defi nitions of crimes against human-
ity and war crimes in Articles 7 and 8 respectively contain formulations which 
limit the Court’s jurisdiction over such crimes to cases of widespread, systematic 
or large-scale violence.8 In fact, the Court itself has recognised that ‘[t]he crimes 
falling within the jurisdiction of th[e] Court … will almost inevitably concern 
collective or mass criminality’.9
Th e collective nature of participation in international crimes means that 
modes of group and accessorial liability do not represent the exception in interna-
tional criminal law (as they do in domestic criminal law), but rather the norm.10 In 
other words, given the factual scenarios which come before international courts, 
rules governing group or accessorial liability are fundamental to the eff ort to 
prosecute individuals for their participation in the commission of international 
crimes. 
Th e Rome Statute includes a detailed provision concerning individual crim-
inal responsibility (Article 25). Paragraph 3 of this provision sets out the various 
modes by which an individual can be found criminally responsible for an inter-
national crime. Th ese various modes include:11
• perpetration (whereby the accused personally fulfi ls or controls the fulfi ll-
ment of some or all of the elements of a crime) (sub-para (a));
• accessorial liability (whereby the accused is held liable for a crime commit-
ted by another individual) (sub-paras (b) and (c));12 and
7 See also Rome Statute, Article 1, Article 5(1).
8 Article 7(1) of the Rome Statute limits the Court’s jurisdiction over ‘crimes against 
humanity’ to acts ‘committed as part of a widespread or systematic attack directed 
against any civilian population’. Article 8(1) expresses the intention of the drafters 
of the Statute that the Court’s jurisdiction over ‘war crimes’ should be limited by 
stating that the Court shall have jurisdiction over war crimes ‘in particular when 
committed as part of a plan or policy or as part of a large-scale commission of such 
crimes’. Cf Bemba Confi rmation at [211], [266] (describing the term ‘in particular’ 
as a ‘practical guideline’ for the Court, not a ‘prerequisite for the Court to exercise 
jurisdiction over war crimes’ or a ‘limit’ on its jurisdiction).
9 Katanga Confi rmation at [501].
10 As a Special Rapporteur to the ILC has put it, ‘[t]he phenomenon of participation is 
the rule in this regard’: Th iam, ‘Fourth Report on the Draft Code’, above n 4, [89]. 
11 In addition to modes of liability for separate and substantive crimes under the Stat-
ute, Article 25(3) also sets out two examples of inchoate crimes: attempt (in sub-par-
agraph (f)), and direct and public incitement to commit genocide (in sub-paragraph 
(e)). Further, Article 28 of the Statute sets out the standard for ‘superior responsibil-
ity’ of military and civilian superiors.
12 I prefer the term ‘accessorial liability’ over ‘complicity’ because the latter is some-
times used more broadly to include group liability (and even co-perpetration). For 
example, Fletcher states that ‘[t]he subject of complicity covers all issues bearing 
on liability as a perpetrator or an accessory’: George Fletcher, Rethinking Criminal 
4 Chapter One
• group liability (whereby the accused is held liable for contributing to the 
commission of a crime by a group acting with a common purpose) (sub-para 
(d)).13 
At the time of the Rome Conference for the negotiation of the Statute, it was 
agreed that a Preparatory Commission (PrepCom) should be established to 
develop (among other things) documents required for the Court to become oper-
ational.14 Th e documents prepared by the PrepCom would be proposals only, and 
would have to be adopted by the Assembly of States Parties (ASP).15 Th e man-
date of the PrepCom included the preparation of a draft text of the Elements of 
Crimes (‘Elements’).16 Th e Elements were designed to elaborate on the crimes 
listed in Articles 6 to 8 of the Rome Statute (that is, the articles relating to gen-
ocide, crimes against humanity and war crimes). Th e goal was to convert the 
Law (2000) 637. According to Fletcher, ‘accessorial liability’ means liability that is 
‘derivative’ of the liability of a principal perpetrator, and includes instigators and 
aiders and abettors: at 636–7. 
13 Th is mode of participation is similar, while not identical, to the concept of joint 
criminal enterprise as developed in the jurisprudence of the ICTY and the Interna-
tional Criminal Tribunal for Rwanda (ICTR): Lubanga Confi rmation at [335]. It is 
referred to as a ‘residual form of accessory liability’ in the Court’s jurisprudence: see, 
eg, Lubanga Confi rmation at [337] (emphasis added); Mbarushimana Arrest Warrant 
Decision at [38] (emphasis added). However, I will use the term ‘group liability’ in 
order to distinguish it from accessorial liability proper in Article 25(3)(b) and (c). 
14 Final Act of the UN Diplomatic Conference, Resolution F. See also Philippe 
Kirsch, ‘Th e Work of the Preparatory Commission’ in Roy Lee (ed), Th e Interna-
tional Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001) 
xlv.
15 Final Act of the UN Diplomatic Conference, Resolution F, [5]; Kirsch, above n 
14, xlvi; Herman von Hebel, ‘Th e Making of the Elements of Crimes’ in Roy Lee 
(ed), Th e International Criminal Court: Elements of Crimes and Rules of Procedure and 
Evidence (2001) 3. For example, Article 9 of the Rome Statute provides that the Ele-
ments of Crimes to be prepared by the PrepCom ‘shall be adopted by a two-thirds 
majority of the members of the Assembly of States Parties’. 
16 Final Act of the UN Diplomatic Conference, Resolution F, [5]–[6]. Th e Elements 
were fi nalised and provisionally adopted by consensus in the 5th session of the Pre-
pCom on 30 June 2000. See Report of the Preparatory Commission for the International 
Criminal Court—Addendum: Part II—Finalized Draft Text of the Elements of Crimes, 
UN Doc PCNICC/2000/1/Add.2 (2 November 2000). Th e Elements were formally 
adopted by the fi rst ASP without change and without a vote: Offi cial Records of the 
Assembly of States Parties to the Rome Statute of the International Criminal Court, First 
Session, New York, 3–10 September 2002, Doc ICC-ASP/1/3, [22]. See also Roger 
Clark, ‘Drafting a General Part to a Penal Code: Some Th oughts Inspired by the 
Negotiations on the Rome Statute of the International Criminal Court and by the 
Court’s First Substantive Law Discussion in the Lubanga Dyilo Confi rmation Pro-
ceedings’ (2008) 19 Criminal Law Forum 519, 524 (n 11). 
5Introduction
Statute’s general descriptions of these crimes into an element-by-element list.17 
With respect to the status of the Elements, Article 9 of the Rome Statute states 
that the Elements ‘shall assist the Court in the interpretation and application’ 
of the crimes in the Statute. Th e Elements are therefore not binding upon the 
Court; they provide only guidance to the judges.18
While elements were elaborated for the substantive crimes listed in Articles 
6 to 8 of the Rome Statute, no elements were elaborated for the modes of liabil-
ity in those crimes, as contained in Article 25(3).19 Th is was despite the fact that 
the elements of modes of liability are just as complex, if not more so, than the 
elements of the substantive crimes. Given that Article 9 only referred to ele-
mentswith respect to Articles 6 to 8, it was considered that preparing elements 
for modes of liability would fall outside the PrepCom’s mandate.20 In addition, 
preparing elements for the modes of liability in Article 25(3) was viewed as being 
too complicated, and better left to the Court to determine through application of 
that provision to specifi c cases.21
17 Kirsch, above n 14, xlvi. 
18 See, eg, ibid xlviii; von Hebel, above n 15, 7–8; Kai Ambos, ‘Some Preliminary 
Refl ections on the Mens Rea Requirements of the Crimes of the ICC Statute and of 
the Elements of Crimes’ in Lal Chand Vorah et al, Man’s Inhumanity to Man: Essays 
on International Law in Honour of Antonio Cassese (2003) 11, 12.
19 See, eg, Informal Inter-Sessional Meeting of the Preparatory Commission for the Inter-
national Criminal Court, on Elements of Crimes, held in Siracusa, Italy, from 31 January 
to 6 February 2000, UN Doc PCNICC/2000/WGEC/INF/1 (10 March 2000) [8] 
(where the informal meeting determined not to elaborate further on the elements 
of modes of liability based on the general view that ‘articles 25 and 28 were suffi -
cient and that no additional elements addressing those forms of criminal responsi-
bility were required’). See also Roger Clark, ‘Th e Mental Element in International 
Criminal Law: Th e Rome Statute of the International Criminal Court and the Ele-
ments of Off ences’ (2001) 12 Criminal Law Forum 291, 319. Th e United States did, 
however, submit a proposal for elements of modes of liability, which was ultimately 
dropped because of a lack of support from many of the other delegations: Proposal 
Submitted by the United States of America: Draft Elements of Crimes: Addendum: IV 
Inchoate Off ences, UN Doc PCNICC/1999/DP.4/Add.3 (4 February 1999). See also 
Maria Kelt and Herman von Hebel, ‘General Principles of Criminal Law and the 
Elements of Crimes’ in Roy Lee (ed), Th e International Criminal Court: Elements of 
Crimes and Rules of Procedure and Evidence (2001) 19, 21; Otto Triff terer, ‘Can the 
“Elements of Crimes” Narrow or Broaden Responsibility for Criminal Behaviour 
Defi ned in the Rome Statute?’ in Carsten Stahn and Göran Sluiter (eds), Th e Emerg-
ing Practice of the International Criminal Court (2009) 381, 388.
20 See, eg, Kelt and von Hebel, ‘General Principles’, above n 19, 21; William Lietzau, 
‘Checks and Balances and Elements of Proof: Structural Pillars for the International 
Criminal Court’ (1999) 32 Cornell International Law Journal 477, 486 (noting that 
many of the negotiators of the Elements viewed the development of elements for 
modes of liability in Articles 25 and 28 as ‘ultra vires for the PrepCom’). 
21 Kelt and von Hebel, ‘General Principles’, above n 19, 37; conversation with Roger 
Clark (Melbourne, 14 October 2010). Clark also suggests there was an element of 
6 Chapter One
Over the coming years, as the fi rst cases come before the ICC for trial, the 
Court will be required to determine for itself the elements of modes of liabil-
ity. Th ere is considerable potential for inaccuracy and inconsistency between the 
various Chambers of the Court in their elaboration of such elements, particu-
larly because the Court will be identifying the elements of modes of liability on 
a case-by-case basis, rather than simultaneously and in a systematic and com-
prehensive manner (as occurred with the Elements). Th e impact of such inac-
curacy or inconsistency on the liability of an accused tried before the Court is 
signifi cant, as a fi nding on the presence or absence of criminal responsibility can 
turn on how a particular element is formulated. Th e purpose of this volume is to 
assist the Court in its task of determining the elements of modes of liability, by 
proposing elements for some of the modes. Th e focus of this volume is accesso-
rial liability, strictly defi ned.22 Accessorial liability is regulated by two separate 
‘drafting fatigue’: Roger Clark, ‘Elements of Crimes in Early Confi rmation Deci-
sions of Pre-Trial Chambers of the International Criminal Court’ (2008) 6 New 
Zealand Yearbook of International Law 209, 231. Nevertheless, he suggests that it 
might be useful for the ASP ‘to return to the subject at some point and create a 
working group to draft appropriate elements for Article 25(3)’: at 231 (n 81).
22 Liability under Article 25(3)(d) is described by the Court as a ‘residual form of acces-
sory liability’ (Lubanga Confi rmation at [337], emphasis added), and it could there-
fore be argued that this volume should also incorporate an analysis of the elements 
of liability under Article 25(3)(d). However, Article 25(3)(d) establishes a mode of 
liability that is similar to the concept of joint criminal enterprise (JCE) as developed 
by the ICTY and ICTR (a form of commission, rather than accessorial, liability): 
Lubanga Confi rmation at [335]. A thorough analysis of Article 25(3)(d) would there-
fore require an examination of JCE under the jurisprudence of those Tribunals. Not 
only is such an examination outside the scope of this volume (as it involves a discus-
sion of commission liability under the jurisprudence of those Tribunals more gener-
ally), it has also been dealt with extensively in the literature. For example, as Badar 
states, JCE ‘has been a source of endless fascination for commentators, generating 
an enormous amount of literature’: Mohamed Elewa Badar, ‘Participation in Crimes 
in the Jurisprudence of the ICTY and ICTR’ in William Schabas and Nadia Bernaz 
(eds), Routledge Handbook of International Criminal Law (2010) 247, 266 (n 72). For 
this reason, the volume is limited to a discussion of accessorial liability as provided 
for in Article 25(3)(b) and (c). For discussions of JCE in the literature, see, eg, 
Gideon Boas, James Bischoff and Natalie Reid, International Criminal Law Practi-
tioner Library: Volume 1: Forms of Responsibility in International Criminal Law (2007) 
7–141; Allison Marston Danner and Jenny Martinez, ‘Guilty Associations: Joint 
Criminal Enterprise, Command Responsibility and the Development of Interna-
tional Criminal Law’ (2005) 93 California Law Review 75; Shane Darcy, ‘An Eff ec-
tive Measure of Bringing Justice? Th e Joint Criminal Enterprise Doctrine of the 
ICTY’ (2004) 20 American University International Law Review 153; Shane Darcy, 
Collective Responsibility and Accountability under International Law (2007) 226–53; 
Jens David Ohlin, ‘Th ree Conceptual Problems with the Doctrine of Joint Crimi-
nal Enterprise’ (2007) 5 Journal of International Criminal Justice 69; Steven Powles, 
‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judi-
cial Creativity’ (2004) 2 Journal of International Criminal Justice 606; Mohamed 
7Introduction
sub-paragraphs of Article 25. Sub-paragraph (b) refers to a person who ‘[o]rders, 
solicits or induces’ the commission or attempted commission of a crime, and sub-
paragraph (c) refers to a person who ‘aids, abets or otherwise assists’ in the com-
mission or attempted commission of a crime, including by ‘providing the means’ 
for its commission. Th us, elements will be prepared separately for the following 
three accessorial modes of liability: 
• ordering; 
• soliciting/inducing; and 
• aiding and abetting. 
Chapter Two provides the necessary background discussion to the volume. It 
begins with a broad examination of the diff erent models that have been devel-
oped by domestic criminal justice systems to deal with participation in domestic 
Elewa Badar, ‘“Just Convict Everyone!”—Joint Perpetration: From Tadić to Stakić 
and Back Again’ (2006) 6 International Criminal Law Review 293; Allen O’Rourke, 
‘Joint Criminal Enterprise and Brđanin: Misguided Over-Correction’ (2006) 47 
Harvard International Law Journal 307; Antonio Cassese, ‘Th e Proper Limit of 
Criminal Responsibility under the Doctrine of Joint Criminal Enterprise’ (2007) 5 
Journal of International Criminal Justice 109; Katrina Gustafson, ‘Th e Requirement 
of an“Express Agreement” for Joint Criminal Enterprise Liability: A Critique of 
Brđanin’ (2007) 5 Journal of International Criminal Justice 134; Harmen van der Wilt, 
‘Joint Criminal Enterprise: Possibilities and Limitations’ (2007) 5 Journal of Inter-
national Criminal Justice 91; Attila Bogdan, ‘Individual Criminal Responsibility in 
the Execution of a “Joint Criminal Enterprise” in the Jurisprudence of the Ad Hoc 
International Tribunal for the Former Yugoslavia’ (2006) 6 International Criminal 
Law Review 63; Cliff Farhang, ‘Point of No Return: Joint Criminal Enterprise in 
Brđanin’ (2010) 23 Leiden Journal of International Law 137; Gunel Guliyeva, ‘Th e 
Concept of Joint Criminal Enterprise and ICC Jurisdiction’ (2008) 5 Eyes on the 
ICC 49; Verena Haan, ‘Development of the Concept of Joint Criminal Enterprise 
at the International Criminal Tribunal for the Former Yugoslavia’ (2005) 5 Inter-
national Criminal Law Review 167; Linda Engvall, ‘Th e Future of Extended Joint 
Criminal Enterprise: Will the ICTY’s Innovation Meet the Standards of the ICC’ 
(2007) 76 Nordic Journal of International Law 241; Héctor Olásolo, ‘Refl ections on 
the Treatment of Notions of Control of the Crime and Joint Criminal Enterprise in 
the Stakić Appeal Judgment’ (2007) 7 International Criminal Law Review 143. For 
a discussion of Article 25(3)(d), see, eg, Jens David Ohlin, ‘Joint Criminal Confu-
sion’ (2009) 12 New Criminal Law Review 406; Héctor Olásolo, ‘Developments in 
the Distinction between Principal and Accessorial Liability in Light of the First 
Case Law of the International Criminal Court’ in Carsten Stahn and Göran Sluiter 
(eds), Th e Emerging Practice of the International Criminal Court (2009) 339, 352–4; 
Antonio Cassese, ‘Amicus Curiae Brief of Professor Antonio Cassese and Members 
of the Journal of International Criminal Justice on Joint Criminal Enterprise’, 27 
October 2008, available at <http://www.eccc.gov.kh/english/cabinet/courtDoc/163/
D99_3_24_EN_Cassese.pdf>; Stefano Manacorda and Chantal Meloni, ‘Indirect 
Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Prac-
tice of International Criminal Law?’ (2011) 9 Journal of International Criminal Justice 
159.
8 Chapter One
crimes. Th is leads to a consideration of the frameworks that have developed at 
the international level to deal with participation in international crimes, begin-
ning with the Nuremberg and Tokyo Charters and extending up to the stat-
utes of the more recent international criminal tribunals. Th is is followed by a 
brief introduction to Article 25 of the Rome Statute. Th e chapter concludes with 
an explanation of the methodology I have adopted for determining the content 
of the elements of accessorial modes of liability under the Rome Statute. Th is 
methodology involves three aspects: interpretation of the language of the rel-
evant provisions of the Rome Statute; analysis of the potential for, and appropri-
ateness of, adopting elements already developed by other courts and tribunals; 
and analysis of the potential for, and the appropriateness of, drawing on general 
principles of domestic criminal law. 
Th e substantive chapters of this volume are aimed at identifying the various 
elements of the accessorial modes of liability for international crimes by applying 
the methodology set out in Chapter Two. Th us, the outcome or product of each 
of these chapters is one or more proposed elements. Th e fi rst substantive chap-
ter, Chapter Th ree, examines the material elements of these accessorial modes 
of liability (that is, what an individual must physically do before s/he can be 
held responsible under that accessorial mode of liability). Th is is referred to as 
the ‘accessorial act’. Th e outcome of this chapter is the identifi cation of the con-
duct element for each mode of liability, and any accompanying circumstance ele-
ments. One conduct element is identifi ed for each accessorial mode of liability, 
which describes the prohibited act committed by the accused. A circumstance 
element is identifi ed for both ordering and soliciting/inducing, which qualifi es 
the conduct element by describing the requisite features of the prohibited act. An 
additional circumstance element is identifi ed for ordering, which qualifi es the 
conduct element by describing the requisite features of the accused. 
Chapter Four considers whether liability under Article 25(3)(b) and (c) can 
properly be characterised as derivative in nature. By derivative, what is meant is 
that liability is dependent upon the commission by someone else (the principal 
perpetrator) of a crime to which the accessory has contributed. After concluding 
that the accessorial modes of liability are derivative in nature, the chapter pro-
ceeds to consider from what the accessory’s liability is derived. Th is ‘thing’ that 
accessorial liability is derived from is referred to as the ‘accessorial object’. Th e 
chapter concludes with a discussion of whether the accessorial object is a mate-
rial element of these accessorial modes of liability, or whether it should be treated 
by the Court as a quasi-jurisdictional pre-requisite to the application of Article 
25(3)(b) and (c). It is argued that the accessorial act constitutes a material element 
(more specifi cally, a consequence element).
Chapter Five considers whether there is any causation requirement for each 
of the accessorial modes of liability. While the Rome Statute contains no express 
causation provision, most commentators agree that the need for a causal link 
between a conduct element and a consequence element is implied. Th is chapter 
draws on the jurisprudence of previous international courts and tribunals and the 
current debate regarding causation in domestic criminal law in order to deter-
9Introduction
mine whether there is a causation requirement for accessorial modes of liability 
under the Rome Statute, and what test for causation should be adopted. It con-
cludes that there is such a causation requirement, and that the appropriate test for 
causation is that the accused’s conduct had a ‘substantial eff ect’ on the occurrence 
of the consequence element. Finally, it is argued that this causation requirement 
does not constitute a material element in itself, but rather that it forms part of 
the consequence element.
Chapters Six and Seven consider the mental element which must accom-
pany each of the material elements developed in the previous chapters. Chapter 
Six conducts a detailed examination of Article 30 (‘Mental element’) of the 
Rome Statute, and attempts to situate this provision within the understanding 
of mental elements in domestic legal systems. Having analysed Article 30 in the 
abstract, Chapter Seven then analyses Article 30 in the context of accessorial 
modes of liability. Th us, Chapter Seven draws together the material elements 
of accessorial modes of liability as developed in the previous chapters, and then 
applies Article 30 to those material elements. In this way, the result of Chapter 
Seven is the identifi cation of the mental element which accompanies each of the 
material elements of the accessorial modes of liability. 
Chapter Eight concludes the volume by seeking to demonstrate how the 
proposed elements of accessorial modes of liability will work in practice. It does 
this by setting out each of the proposals in full, then applying them to a hypo-
thetical factual scenario which involves ordering, soliciting/inducing and aiding 
and abetting. Th is exercise illustrates how important it is that the Court identify 
the elements of accessorial modes of liability both accurately and consistently in 
its jurisprudence. 
Chapter Two
Background
I Introduction 
Th e object of this chapter is primarily to describe in more detail the purpose 
of this volume, and the methodology by which the volume achieves that pur-
pose. In addition, the chapter provides some background and an introduction to 
Article 25 of the Rome Statute.