FORMS OF RESPONSIBILITY IN INTERNATIONAL CRIMINAL LAW International Criminal Law Practitioner Library Series Volume I doc

FORMS OF RESPONSIBILITY IN INTERNATIONAL
CRIMINAL LAW
Volume I of the International Criminal Law Practitioner Library series focuses
on the law of individual criminal responsibility applied in international crim-
inal law, providing a thorough review of the forms of criminal responsibility.
The authors present a critical analysis of the elements of individual criminal
responsibility as set out in the statutory instruments of the international and
hybrid criminal courts and tribunals and their jurisprudence. All elements are
discussed, demystifying and untangling some of the confusion in the jurispru-
dence and literature on the forms of responsibility. The jurisprudence of the
ICTY and the ICTR is the main focus of the book. Every trial and appeal
judgement, as well as relevant interlocutory jurisprudence, up to 1 December
2006, has been surveyed, as has the relevant jurisprudence of other tribunals
and the provisions in the legal instruments of the ICC, making this a highly
relevant and timely work.
G
IDEON B OAS, a former Senior Legal Officer at the ICTY, is a Senior
Lecturer in Law at Monash University Law Faculty and an international
law consultant.
J
AMES L. BISCHOFF, a former Associate Legal Officer at the ICTY, is a
Law Clerk in the Chambers of the Honourable Juan R. Torruella of the United
States Court of Appeals for the First Circuit.
N
ATALIE L. REID, a former Associate Legal Officer at the ICTY, is an
Associate with Debevoise & Plimpton LLP, New York.

FORMS OF RESPONSIBILITY IN
INTERNATIONAL CRIMINAL LAW
International Criminal Law Practitioner Library Series
Volume I

GIDEON BOAS
JAMES L
. BISCHOFF
NATALIE L
. REID
The views expressed in this book are those of the authors alone
and do not necessarily reflect the views of the International
Criminal Tribunal for the former Yugoslavia or the United
Nations in general.
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa
˜
o Paulo, Delhi
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521878319
# Gideon Boas, James L. Bischoff and Natalie L. Reid 2007
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.
First published 2007
Printed in the United Kingdom at the University Press, Cambridge
A catalogue record for this publication is available from the British Library
ISBN 978-0-521-87831-9
Cambridge University Press has no responsibility for the persistence or
accuracy of URLs for external or third-party internet websites referred to
in this book, and does not guarantee that any content on such

websites is, or will remain, accurate or appropriate.
Contents
Foreword page xiii
Table of authorities xvii
1 Introduction 1
1.1 Forms of responsibility in international criminal law 1
1.2 Scope of this book and terminology used 4
2 Joint criminal enterprise 7
2.1 Origins and development of Joint Criminal Enterprise
in the jurisprudence of the ad hoc Tribunals 10
2.2 Limited application of JCE in the ICTR 28
2.3 Elements of Joint Criminal Enterprise 33
2.3.1 Physical elements 34
2.3.1.1 The JCE consisted of a plurality of persons:
first physical element 35
2.3.1.2 Common plan, design, or purpose: second
physical element 37
2.3.1.3 The accused participated in the JCE: third
physical element 44
2.3.2 Mental elements 51
2.3.2.1 Mental elements of the first category of JCE 51
2.3.2.1.1 Voluntary participation 51
2.3.2.1.2 Shared intent 52
2.3.2.2 Mental elements of the second category of JCE 57
2.3.2.2.1 Personal knowledge 57
2.3.2.2.2 Intent to further criminal purpose 59
2.3.2.2.3 Shared intent for specific-intent
crimes 67
2.3.2.3 Mental elements of the third category of JCE 68
v

2.3.2.3.1 Intent to participate and further
criminal purpose 68
2.3.2.3.2 Accused’s anticipation of natural
and foreseeable commission
of charged crime 70
2.4 The Br

danin Trial Judgement: reining in the expansion of JCE? 84
2.4.1 The Br

danin Trial Judgement 85
2.4.2 Warning signs before the Br

danin Trial Judgement 89
2.4.3 Precedent considered in the Br

danin Trial Judgement 93
2.4.4 Post-Br

danin jurisprudence 96
2.4.5 Assessing the impact of Br

danin 103
2.5 Indirect co-perpetration: a new form of common-purpose
liability? 104
2.5.1 The Stakic
´
Trial Judgement 105
2.5.2 The prosecutor’s response to the Br


danin and Stakic
´
Trial Judgements 109
2.5.3 The March 2006 Milutinovic
´
decision 112
2.5.4 The Stakic
´
Appeal Judgement 114
2.5.5 The Gacumbitsi Appeal Judgement 116
2.5.6 Assessing the impact of Milutinovic
´
, Stakic
´
and
Gacumbitsi 121
2.6 Joint Criminal Enterprise and its analogues in the
International Criminal Court and internationalised tribunals 124
2.6.1 The International Criminal Court 124
2.6.2 The Internationalised Tribunals 128
2.6.2.1 Special Court for Sierra Leone (SCSL) 128
2.6.2.2 East Timor: Special Panels for Serious Crimes
(SPSC) 133
2.6.2.3 The Extraordinary Chambers in the Courts
of Cambodia (ECCC) 136
2.6.2.4 Supreme Iraqi Criminal Tribunal (SICT),
formerly known as the Iraqi Special
Tribunal (IST) 137
2.7 Conclusion 140
3 Superior responsibility 142

3.1 Origins and development of the superior responsibility
doctrine 145
3.1.1 The roots of the superior responsibility doctrine 145
3.1.2 Developments subsequent to the Second World War 148
vi Contents
3.1.3 Historical evolution of the elements of superior
responsibility 152
3.1.3.1 Historical evolution of the subordinate-superior
relationship element 152
3.1.3.1.1 Post-Second World War cases 153
3.1.3.1.2 Additional protocols 157
3.1.3.1.3 Statutes of the ad hoc Tribunals 158
3.1.3.2 Historical evolution of the mental element 159
3.1.3.2.1 Post-Second World War cases 159
3.1.3.2.2 Additional protocols 167
3.1.3.2.3 The Kahan Report (Israeli
Commission of Inquiry) 168
3.1.3.2.4 The Statutes of the ad hoc Tribunals 169
3.1.3.2.5 ICC Statute 169
3.1.3.3 Historical evolution of the ‘necessary and
reasonable measures’ element 170
3.1.3.3.1 Post-Second World War cases:
‘necessary and reasonable measures’ 170
3.1.3.3.2 Post-Second World War cases:
duty to prevent as a separate duty? 172
3.1.3.3.3 Additional protocols 173
3.2 Elements of superior responsibility 174
3.2.1 Elements 181
3.2.1.1 A superior-subordinate relationship existed
between the accused and the person for whose

criminal conduct he is alleged to be responsible 181
3.2.1.2 The accused knew or had reason to know that
the criminal conduct in question was about to
be, was being, or had been realised by one
or more subordinates 200
3.2.1.2.1 Actual knowledge: first alternative
mental element 203
3.2.1.2.2 Constructive knowledge: second
alternative mental element 205
3.2.1.3 The accused failed to take the necessary
and reasonable measures to prevent or punish
the subordinate criminal conduct in question 221
3.2.1.3.1 Common sub-element for the
failure to prevent and the failure
to punish 224
Contents vii
3.2.1.3.2 First form of superior
responsibility: the failure
to prevent 227
3.2.1.3.3 Second form of superior
responsibility: the failure to punish 229
3.3 The scope of the subordinate criminal conduct that may give
rise to superior responsibility 237
3.4 Superior responsibility in the International Criminal Court
and internationalised tribunals 252
3.4.1 The International Criminal Court 252
3.4.1.1 A bifurcated standard 253
3.4.1.2 Mental element: a higher standard for civilian
superiors 258
3.4.1.3 Causation 260

3.4.1.4 Past crimes and independent obligations 262
3.4.2 The internationalised tribunals 264
3.4.2.1 Special Court for Sierra Leone (SCSL) 264
3.4.2.2 East Timor: Special Panels for Serious Crimes
(SPSC) 268
3.4.2.3 The Extraordinary Chambers in the Courts
of Cambodia (ECCC) 271
3.4.2.4 Supreme Iraqi Criminal Tribunal (SICT) 272
3.5 Conclusion 274
4 Complicity and aiding and abetting 278
4.1 The modes of participation in genocide: inchoate crimes
or forms of responsibility? 280
4.2 The relationship between ‘aiding and abetting genocide’
and ‘complicity in genocide’ 291
4.3 Elements of aiding and abetting 303
4.3.1 Physical elements 304
4.3.1.1 Practical assistance, encouragement, or moral
support: first physical element 305
4.3.1.1.1 The accused lent practical assistance,
encouragement, or moral support to
the physical perpetrator in
committing a crime 305
4.3.1.1.2 The accused may aid and abet by
mere presence at the scene of
the crime 307
viii Contents
4.3.1.1.3 Does a form of responsibility known
as ‘aiding and abetting by omission’
exist in international criminal law? 310
4.3.1.1.4 The accused may aid and abet in the

planning, preparation, or execution
of a crime, and before, during, or
after the crime of the physical
perpetrator 315
4.3.1.1.5 The accused need not be
physically present when the
physical perpetrator commits
the crime 316
4.3.1.2 Substantial effect: second physical element 317
4.3.1.2.1 The practical assistance,
encouragement, or moral support
had a substantial effect on the
commission of the crime by the
physical perpetrator 317
4.3.2 Mental elements 319
4.3.2.1 Intentional action 319
4.3.2.1.1 The accused acted intentionally
with knowledge or awareness that
his act would lend assistance,
encouragement, or moral
support to the physical
perpetrator 319
4.3.2.2 Awareness of crime 321
4.3.2.2.1 The accused was aware of the
essential elements of the physical
perpetrator’s crime, including the
perpetrator’s mental state 321
4.3.2.3 The requisite intent of the accused aider and
abettor for specific-intent crimes 324
4.4 Elements of complicity in genocide 327

4.4.1 Practical assistance, encouragement, or moral
support: first physical element 328
4.4.1.1 The accused lent practical assistance,
encouragement, or moral support to the
physical perpetrator in committing a crime 328
Contents ix
4.4.2 Substantial effect: second physical element 328
4.4.2.1 The practical assistance, encouragement, or
moral support had a substantial effect on the
commission of the crime by the physical
perpetrator 328
4.4.3 Mental elements: intentional action and awareness of crime 329
4.4.3.1 The accused acted intentionally, and was aware
of the essential elements of the crime of
genocide, includ ing the perpetrato r’s mental state 329
4.5 Complicity and aiding and abetting in the International
Criminal Court and internationalised tribunals 330
4.5.1 The International Criminal Court 330
4.5.2 The internationalised tribunals 334
4.5.2.1 Special Court for Sierra Leone (SCSL) 334
4.5.2.2 East Timor: Special Panels for Serious Crimes
(SPSC) 336
4.5.2.3 The Extraordinary Chambers in the Courts
of Cambodia (ECCC) 337
4.5.2.4 Supreme Iraqi Criminal Tribunal (SICT) 339
4.6 Conclusion 341
5 Planning, instigating and ordering 343
5.1 Evolution of the elements of planning, instigating and
ordering in the jurisprudence of the ad hoc tribunals 344
5.2 Elements of planning 354

5.2.1 Design of conduct with intent or awareness
of substantial likelihood 354
5.2.2 Substantial contribution 357
5.3 Elements of instigating 358
5.3.1 Prompting of conduct with intent or awareness
of substantial likelihood 358
5.3.2 Substantial contribution 362
5.4 Elements of ordering 364
5.4.1 Instruction to engage in conduct with intent
or awareness of substantial likelihood 364
5.4.2 Authority of accused 367
5.4.3 Direct and substantial contribution 370
5.5 Planning, instigating and ordering in the International
Criminal Court and internationalised criminal tribunals 371
5.5.1 The International Criminal Court 371
x Contents
5.5.2 The internationalised tribunals 373
5.5.2.1 Special Court for Sierra Leone (SCSL) 373
5.5.2.2 East Timor: Special Panels for Serious Crimes
(SPSC) 376
5.5.2.3 The Extraordinary Chambers in the Courts
of Cambodia (ECCC) 377
5.5.2.4 Supreme Iraqi Criminal Tribunal (SICT) 378
5.6 Conclusion 379
6 Concurrent convictions and sentencing 381
6.1 Choosing among forms of responsibility 382
6.1.1 Concurrent convictions pursuant to more than
one Article 7/6(1) form of responsibility 388
6.1.2 Concurrent convictions pursuant to Article 7/6(1)
and Article 7/6(3) 393

6.2 Forms of responsibility and sentencing 406
7 Conclusion 415
7.1 Innovations in the law on forms of responsibility in the
ad hoc Tribunals 416
7.2 The ad hoc Tribunals’ emphasis on ‘commission’ liability 419
7.3 Limitations on trial chamber discretion in choosing forms
of responsibility 423
7.4 The future development of the law on forms of responsibility 424
Annex: Elements of forms of responsibility in international criminal law 426
Index 430
Contents xi

Foreword
International criminal law is a new branch of law, with one foot in international
law and the other in criminal law. Until the Nuremberg trial, international
criminal law was largely ‘horizontal’ in its operation – that is, it consisted
mainly of co-operation between states in the suppression of national crime.
Extradition was therefore the central feature of international criminal law. Of
course there were international crimes, crimes that threatened the interna-
tional order, such as piracy and slave trading, but with no international
court to prosecute such crimes, they inevitably played an insignificant part in
international criminal law. In 1937 came the first attempt to create an inter-
national criminal court, for terrorism, but the treaty adopted for this purpose
never came into force. The Nuremberg and Tokyo trials mark the commence-
ment of modern international criminal law – that is, the prosecution of
individuals for crimes against the international order before international
courts. The Nuremberg and Tokyo tribunals have been criticised for providing
victors’ justice, but they did succeed in developing a jurisprudence for the
prosecution of international crimes that courts still invoke today. The Cold
War brought this development to an end. Attempts to create a permanent

international criminal court failed and it was left to academics to debate and
dream about the creation of such a court for the next forty years.
All this changed with the end of the Cold War and the creation of ad hoc
tribunals for the former Yugoslavia and Rwanda. At last the international
community had two genuine international tribunals to dispense justice.
‘Vertical’ international criminal law – that is, the prosecution of individuals
for international crimes before international courts – became a reality.
However, no sooner had the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) started to function than attention was diverted to the creation of a
xiii
permanent international criminal court to try crimes throughout the world
and not just in Yugoslavia and Rwanda. International lawyers applauded the
proposal for such a court put forward by the International Law Commission
and scrambled to participate in the Rome Conference of 1998 for the creation
of an international criminal court. Attention remained focused on the
International Criminal Court as the number of states ratifying the Rome
Statute grew and the International Criminal Court finally became a reality in
2002. At this time there was a burst of writing and many books and journal
articles appeared on the structure, jurisdiction, procedure and substantive law
of the International Criminal Court.
In recent times, in part as a result of disillusionment following the slow start
of the International Criminal Court, the pendulum of international criminal
law has been swung back once more to where it should probably have been all
the time – the ad hoc tribunals. Throughout the period of excitement and
expectation over the creation of the International Criminal Court, the ICTY
and ICTR quietly proceeded with the prosecution of international criminals
for the most serious crimes known to mankind – genocide, crimes against
humanity and war crimes. The trial of Slobodan Milos
ˇ

evic
´
received much
media attention but little attention was paid to the daily work of the ICTY
and ICTR. Lengthy, carefully researched and thoroughly reasoned judgments
have been handed down by judges from different backgrounds and with
different judicial experience. These judgments have created a new, truly inter-
national or transnational international criminal law that draws on the experi-
ence of Nuremberg and Tokyo and national criminal courts, and successfully
integrates national and international criminal law, humanitarian law and
human rights law. At the same time the ICTY and ICTR have created vibrant
institutions that attract judges and lawyers from many countries, united in
their commitment to international justice. Over 1,000 lawyers and para-legals
are today employed in some capacity before international tribunals – and most
are with the ICTY or ICTR.
Publications have not kept pace with developments before the ICTY and
ICTR. Writings on these courts, particularly in comparison with writings on
the International Criminal Court, are few. Moreover, much of the writing on
the ICTY and ICTR focuses on the structure of the tribunals and their
procedures, rather than on the substantive law applied. International
Criminal Law Practitioner Library Series, with one volume devoted to forms
of responsibility and the other to elements of crime, therefore makes a timely
appearance. Written by three young international criminal lawyers who have
all worked in the ICTY and been directly involved in the evolution of the law
before the tribunal, the study examines the substantive law of the tribunals
xiv Foreword
primarily from the perspective of the international criminal law practitioner,
with the needs of the practitioner in mind. However, as one would expect from
authors with such distinguished academic credentials, the study has an equal
appeal to the legal academic and student.

Inevitably, as the ICTY and ICTR provide the richest source of substantive
criminal law, the study focuses on the jurisprudence of these tribunals. The
jurisprudence of other tribunals is not, however, ignored. The law of
Nuremberg and Tokyo features prominently, and the law and structures of
the other international or internationalised tribunals – the Special Court for
Sierre Leone (SCSL), the Special Panels for Serious Crimes in East Timor
(SPSC), the Supreme Iraqi Criminal Tribunal (SICT), the Extraordinary
Chambers of the Courts of Cambodia (ECCC) and, of course, the
International Criminal Court – are also examined. The law of the
International Criminal Court, contained in its primary instruments dealing
with crimes and elements of crimes, receives particular attention.
Volume I deals with the law of individual criminal responsibility in interna-
tional criminal law. This law seeks to capture all the methods and means by
which an individual may contribute to the commission of a crime and be held
responsible under the law. It aims to ensure that not only the perpetrator but
also the high- or mid-level person – both civil and military – frequently
removed from the actual perpetration of the crime, may be held responsible.
Consequently this volume focuses on the various forms of participation in
international crimes – joint criminal enterprise, superior responsibility, aiding
and abetting and planning and instigating international crimes.
Volume II will cover the elements of the core international crimes of geno-
cide, crimes against humanity and war crimes, as seen from the perspective of
law of both the ad hoc international tribunals and other tribunals.
The authors are not content with a mere portrayal or description of the law.
The approaches of different tribunals, and the approaches of different judges
within the same tribunal, are compared and contrasted; and decisions are
carefully analysed and criticised. Moreover, the views of scholars are consid-
ered and integrated into the text.
International Criminal Law Practitioner Library Series will primarily, and in
the first instance, assist the international criminal law practitioner, whatever

his or her court. But it will also be of assistance to the growing body of national
lawyers engaged in the practice of international criminal law before domestic
courts. As the Rome Statute of the International Criminal Court gives jur-
isdiction over international crimes in the first instance to domestic courts, in
accordance with the principle of complementarity, it can be expected that this
body of lawyers will grow.
Foreword xv
Gideon Boas, James Bischoff and Natalie Reid are to be congratulated on a
work that concentrates on the jurisprudence of the main source of contem-
porary international criminal law – the law of the ad hoc tribunals – but which
at the same time takes account of all the other sources of this rapidly expand-
ing branch of law. Practitioners, academics and students will learn much from
this excellent study.
John Dugard
The Hague
xvi Foreword
Table of authorities
EInternational Criminal Court (ICC) cases
Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas
Lubanga Dyilo, Case No. ICC-01/04-01/06 253
Situation in Uganda, Case No. ICC-02/04–01/05 128
International Criminal Tribunal for Rwanda (ICTR) cases
Prosecutor v. Akayesu, Case No. ICTR-96-4 291, 292–3, 306–7, 309–10, 326,
328, 345–7, 356, 359–60, 367
Prosecutor v. Bagilishema, Case No. ICTR-95-1A 183, 191–2, 193, 210–11,
316, 348, 355
Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64 31, 116–21, 124, 369, 422–3
Prosecutor v. Kajelijeli, Case No. ICTR-98-44A 184–5, 193, 198, 398, 405
Prosecutor v. Kambanda, Case No. ICTR 97-23 247–8
Prosecutor v. Kamuhanda, Case No. ICTR-99-54A 284, 366, 370–1, 389–92,

400
Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, Case Nos. ICTR-98-44
97, 287–9
Prosecutor v. Karera, Case No. ICTR-01-74 6
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR 95-1 29–30, 198, 226
Prosecutor v. Mpambara, Case No. ICTR-01-65 32–3, 314–15
Prosecutor v. Muhimana, Case No. ICTR-95-1B 6
Prosecutor v. Musema, Case No. ICTR-96-13 302
Prosecutor v. Muvunyi, Case No. ICTR-00-55A 189, 314, 360–1, 369
Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Case No. ICTR-96-11 6,
355, 357
Prosecutor v. Ndindabahizi, Case No. ICTR-01-71 6, 364
Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, Case No. ICTR-99-46
31–2, 202
xvii
Prosecutor v. Ntakirutimana and Ntakirutimana, Case Nos. ICTR-96-10 and
ICTR-96-17 28–9, 30–1, 35, 299, 301–2, 326–7
Prosecutor v. Rutaganda, Case No. ICTR-96-3 360
Prosecutor v. Rutaganira, Case No. ICTR-95-1C 311
Prosecutor v. Rwamakuba, Case No. ICTR-98-44 27–8, 29, 141
Prosecutor v. Semanza, Case No. ICTR-97-20 281, 289–90, 293–4, 327,
329–30, 367–8, 411–12
Prosecutor v. Seromba, Case No. ICTR-2001-66 6
Prosecutor v. Simba, Case No. ICTR-2001-76 32, 56, 387
International Criminal Tribunal for the former Yugoslavia (ICTY) cases
Prosecutor v. Aleksovski, Case No. IT-95-14/1 193, 205, 308, 311, 345, 359
Prosecutor v. Babic
´
, Case No. IT-03-72 50–1
Prosecutor v. Blagojevic

´
and Jokic
´
, Case No. IT-02-60 37, 40, 43, 50, 51, 96,
186, 197, 201, 202–3, 210, 281, 286–7, 297–8, 299, 316, 327, 328–9, 330
Prosecutor v. Blas
ˇ
kic
´
, Case No. IT-95-14 78, 207–8, 222–3, 224, 226, 230, 309,
311, 314, 319–20, 322–3, 347–8, 349–52, 361, 393–404, 423–4
Prosecutor v. Bos
ˇ
koski and Tarc
ˇ
ulovski, Case No. IT-04-82 6, 239–40, 241–6,
416–17
Prosecutor v.Br

danin and Talic
´
, Case No. IT-99-36 6, 26–7, 36, 37, 41–2,
45–7, 50, 51, 60, 70, 74–5, 77, 81–96, 103–5, 109–10, 186, 193, 194, 197,
201–3, 211, 238–9, 286, 298–9, 309, 327, 329, 352, 357, 386, 387, 392–3,
417, 421
Prosecutor v. Delalic
´
, Mucic
´
, Delic

´
and Landzˇo, Case No. IT-96-21(‘C
ˇ
elebic
´
i
case’) 29, 151, 152, 155, 157, 161, 165, 166, 168, 182–3, 185–7, 189–90, 203,
206–8, 210–11, 224, 345
Prosecutor v. Furundzˇija, Case No. IT-95-17/1 10–14, 40, 305, 307–8
Prosecutor v. Galic
´
, Case. No. IT-98-29 366–7
Prosecutor v. Hadzˇihasanovic
´
and
Kubura, Case No. IT-01-47 175–6, 187–9,
195, 220–1, 233–7, 238, 412
Prosecutor v. Halilovic
´
, Case No. IT-01-48 177–8, 194–5, 211, 220–4
Prosecutor v. Jokic
´
, Case No. IT-01-42/1 404–6
Prosecutor v. Kordic
´
and C
ˇ
erkez, Case No. IT-95-14/2 191, 192, 195, 211, 227,
233, 270, 348, 350–6, 367, 395–7, 402
Prosecutor v. Krajis

ˇ
nik, Case No. IT-00-39 41, 43–4, 80–1, 88, 97–103, 124,
387, 417, 420–1
Prosecutor v. Krnojelac, Case No. IT-97-25 37, 37–8, 40–1, 52–67, 94, 202, 210,
217–20, 242–3, 325–6, 394–8, 407, 413
Prosecutor v. Krstic
´
, Case No. IT-98-33 56, 75–8, 94, 95, 187, 189, 195, 233,
243, 281, 294–8, 300–1, 319, 320, 325, 326, 342, 397, 408–9, 417–18, 422–3
xviii Table of authorities
Prosecutor v. Kunarac, Kovac, and Vukovic
´
, Case No. IT-96-23 & IT-96-23/1
321, 386
Prosecutor v. Kvocka, Radic
´
,Z
ˇ
igic
´
, and Prcac
´
, Case No. IT-98-30 37–8, 43, 44,
45–6, 47–68, 79, 81–2, 192, 228, 325, 348
Prosecutor v. Limaj, Bala, and Musliu, Case No. IT-03-66 79, 183–4, 211,
230–1, 352
Prosecutor v. Martic
´
, Case No. IT-95-11 6
Prosecutor v. Milos

ˇ
evic
´
, Case No. IT-02-54 43, 77, 384–5
Prosecutor v. Milutinovic
´
,S
ˇ
ainovic
´
, and Ojdanic
´
, Case No. IT-99-37 23–29, 46,
97–9, 112–113, 122–4, 419–420
Prosecutor v. Milutinovic
´
,S
ˇ
ainovic
´
, Ojdanic
´
, Pavkovic
´
, Lazarevic
´
, Ðordevic
´
and
Lukic

´
, Case No. IT-05-87 43, 111, 418, 421–2
Prosecutor v. Mrksic
´
, Radic
´
, and S
ˇ
ljivanc
ˇ
anin, Case No. IT-95-13/1 6
Prosecutor v. Naletilic
´
and Martinovic
´
, Case No. IT-98-34 208–9, 244, 316–19,
324, 355
Prosecutor v. Oric
´
, Case No. IT-03-68 188, 194, 210, 215–17, 226, 231–4, 239,
240–52, 308–9, 320–1, 359, 361, 398–401, 410–13, 417
Prosecutor v. Popovic
´
, Beara, Nikolic
´
, Borovc
ˇ
anin,
Tolimir, Miletic
´

, Gvero,
Pandurevic
´
and Trbic
´
, Case No. IT-05-88 97, 100, 110, 112, 121–3, 417
Prosecutor v. Prlic
´
,Stojic
´
, Praljak, Petkovic
´
,C
´
oric
´
and Pus
ˇ
ic
´
, Case No. IT-04-
74 110–12
Prosecutor v. Simic
´
, Tadic
´
, and Zaric
´
, Case No. IT-95-9 37, 40–1, 52–6, 94–6,
321–4

Prosecutor v. Stakic
´
, Case No. IT-97-24 37, 46, 52–4, 58, 79–82, 105–9, 113–16,
194, 294, 329, 348–9, 357, 392–3, 400, 405, 417
Prosecutor v. Strugar, Case No. IT-01-42 181–2, 195–7, 211–15, 224–5, 228–9,
230, 312–16, 352–3, 402–4
Prosecutor v. Tadic
´
, Case No. IT-94-1 15–23, 37, 38–9, 42, 43, 51, 57, 60,
68–74, 90, 94, 95, 305–6, 309, 315–17, 344–5, 418–19
Prosecutor v. Vasiljevic
´
, Case No. IT-98-32 29, 37, 47, 51, 54, 65, 76–7, 94, 319,
326, 407–8
International treaties
Convention on the Prevention and Suppression of the Crime of Genocide of
1948, entered into force 12 January 1951, 78 UNTS. 277 27, 280, 331–2
Convention Respecting the Laws and Customs of War on Land of 18 October
1907, entered into force 26 January 1910, 36 Stat. 2277 (1907), TS No. 539
146–7
Geneva Convention relative to the Treatment of Prisoners of War, 75
UNTS. 135 149
Table of authorities xix
International Convention for the Suppression of Terrorist Bombing, entered
into force 23 May 2001, GA Res. 52/164, Annex (1997) 22
Protocol Additional to the Geneva Convention of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts,
1125 UNTS. 3 150, 157–8, 167–8, 209
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed

Conflicts, 1125 UNTS. 609 150
Rome Statute of the International Criminal Court, entered into force 1 July
2002, UN Doc. A/CONF. 183/9 (1998) 119–20, 125–8, 169–70, 252–64,
330–4, 371–3
National cases and legislation
American Articles of War (1775-1806) 146
American Law Institute, Model Penal Code (1962) 349
Articles of Military Lawwes to be Observed in the Warres (Sweden 1621) 145–6
British Royal Warrant of 1945 11
In re Yamashita, 327 U.S. 1 (1946) 153
Judgement in the Case of Emil Muller, 30 May 1921, reprinted in (1922) 16
American Journal of International Law 684 147
R. v. Crabbe, (1985) 58 ALR 417 349
R. v. G. and Another, [2004] 1 AC 1034 349
Socialist Federal Republic of Yugoslavia Federal Secretariat for National
Defence, Regulations Concerning the Application of International Law to
the Armed Forces of SFRY (1988) 361–3
United States v. Calley, 46 CMR 1131 (1971), affirmed by 48 CMR 19 (1973)
(‘Medina case’) 166–7
United States v. Yamashita, in Law Reports of Trials of War Criminals, vol. IV
153, 159–61, 170
US Department of Army, Law of Land Warfare Field Manual 27–10 (1956) 167
Other international and United Nations materials
Committee of the Whole, Summary Record of the 1st Meeting, held on 16 June
1998, UN Doc. A/CONF.183/C.1/SR.1, 20 November 1998 256
Committee on the Responsibility of the Authors of War and on Enforcement
of Penalties, Report Presented to the Preliminary Peace Conference,
Versailles, 29 March 1919 147
Control Council Law No. 10 11, 27, 148
Draft Code of Crimes Against the Peace and Security of Mankind (1991) 151

Draft Code of Crimes Against the Peace and Security of Mankind (1996) 151, 307
xx Table of authorities
Final Report of the Commission of Experts Established pursuant to Security
Council Resolution 780 (1992), UN Doc. S/1994/674 (1994) 204
Final Report of the Commission of Inquiry into the Events at the Refugee
Camps in Beirut, 7 February 1983, reprinted in (1983) 22 ILM 473–520 168–9
Law on the Establishment of the Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed during the Period of
Democratic Kampuchea, as amended on 27 October 2004, Doc. No. NS/
RKM/1004/006 136, 271, 338, 378
Law Proposal Submitted by the United States of America for Article 25, UN
Doc. A/CONF.183/C.1/L.2, 16 June 1998 255
Report of the Preparatory Committee on the Establishment of an
International Criminal Court, UN Doc. A/CONF.183/2/Add.1, 14 April
1998 255
Report of the Secretary-General pursuant to Paragraph 2 of Security Council
Resolution 808 (1993), UN Doc. S/25704 (1993) 1, 5, 241
Rules of Procedure and Evidence for the International Criminal Tribunal for
the Former Yugoslavia, UN Doc. IT/32/Rev.37 (6 April 2006) 90
Security Council Resolution 808, 22 February 1993, UN Doc. S/RES/808
(1993) 1, 5
Statute of the International Criminal Tribunal for the former Prosecution of
Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the former Yugoslavia since 1991, 32
ILM 1159 (1993), as amended by Security Council Resolution 1660 of
28 February 2006 1–2, 8, 151, 158, 177–252, 237, 240, 279–344
Statute of the International Tribunal for Rwanda, (1994) 33 ILM 1602, as
amended by Security Council Resolution 1534 of 26 March 2004 177–252,
279–344
Statute of the Iraqi Special Tribunal 137, 339–40, 378

Statute of the Special Court for Sierra Leone, 2178 UNTS 138, UN Doc. S/
2002/246, Appendix II 128–9, 264–8, 334–7, 373–4
United Nations Transitional Administration in East Timor, Regulation No.
2000/15 on the Establishment of Panels with Exclusive Jurisdiction over
Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, 6 June 2000
133, 268, 337, 376–7
Other international cases
Government Commissioner of the General Tribunal of the Military Government
for the French Zone of Occupation in Germany v. Herman Roechling and
Others, Indictment and Judgment of the General Tribunal of the Military
Government of the French Zone of Occupation in Germany, in Trials of War
Table of authorities xxi
Criminals Before the Nuremberg Military Tribunals Under Control
Council Law No. 10 (1950) vol. XIV, Appendix B 155, 165–6
In re Sandrock and others, War Crimes Reports 1 (1947) 35 17–18
Massenvernichtungsverbrechen und NS-Gewaltverbrechen in Lagern;
Kriegsverbrechen. KZ Auschwitz, 1941–1945, 21 Justiz und NS-Verbrechen
(1979) 361 (‘Auschwitz Concentration Camp case’) 12
R
¨
oling, B. V. A. and C. F. R
¨
uter (eds.), The Tokyo Judgment: The
International Military Tribunal for the Far East (I.M.T.F.E.) 29 April
1946–12 November 1948 (1977) 156–7, 171–3
Trial of Gustav Alfred Jepsen and others, 15 Law Reports of Trials of War
Criminals (1949) 18
Trial of Martin Gottfried Weiss and Thirty-Nine Others, 16 Law Reports of
Trials of War Criminals (1949) 5 11–12
United States v. Flick, Steinbrinck, Weiss, Burkart, Kaletsch and Terberger,in

Trials of War Criminals Before the Nuremberg Military Tribunals Under
Control Council Law No. 10 (1950), vol. VI 156
United States v. Goebell, Krolikovsky, Wentzel, Weber, Seiler, Schmitz,
Pointer, Albrecht, Geyer, Witzke, Akkermann, Meyer-Gerhards, Rommel,
Garrels, Mammenga, Haksema, Hanken, Heinemann, Wittmaack, Langer,
Haesiker, Schierlau and Rimbach, US Military Government Court, U.S.
Forces, European Theatre, Verdict of 22 March 1946 20–1
United States v. Karl Brandt, Becker-Freyseng, Beiglb
¨
ock, Blome, Brack,
Rudolf Brandt, Fischer, Gebhardt, Genzken, Handloser, Hoven, Mrugowsky,
Oberheuser, Pokorny, Poppendick, Rombert, Rose, Rostick, Ruff, Scha
¨
fer,
Schr
¨
oder, Sievers and Weltz, in Trials of War Criminals Before the
Nuremberg Military Tribunals Under Control Council Law No. 10 (1950),
vol. II 154–5, 170
United States v. List, von Weichs, Rendulic, Kuntze, Foertsch, Boehme, Felmy,
Lanz, Dehner, von Leyser, Speider and von Geitner, US Military Tribunal,
Judgment, 19 February 1948, in Trials of War Criminals Before the
Nuremberg Military Tribunals Under Control Council Law No. 10 (1950),
vol. XI 154, 162–3, 172–3
United States v. Pohl, Frank, Georg L
¨
orner, Fanslau, Hans L
¨
orner, Vogt,
Tschentscher, Scheide, Kiefer, Eirenschmalz, Sommer, Pook, Baier, Hohberg,

Volk, Mummenthey, Bobermin and Klein, in Trials of War Criminals Before
the Nuremberg Military Tribunals Under Control Council Law No. 10
(1950), vol. V 155–6, 164–5
United States v. Toyoda, War Crimes Tribunal Courthouse, Tokyo, Japan,
6 September 1949 161–2
xxii Table of authorities
United States v. von Leeb, Sperrle, von K
¨
uchler, Blaskowitz, Hoth, Reinhardt,
von Salmuth, Hollidt, Schniewind, von Roques, Reinecke, Warlimont,
W
¨
ohlerand Lehmann, in Trials of War Criminals Before the Nuremberg
Military Tribunals Under Control Council Law No. 10 (1950) vol. I 154,
163–4, 173
Selected secondary sources
Akhavan, Payam ‘The Crime of Genocide in the ICTR Jurisprudence’, (2005)
3 Journal of International Criminal Justice 989 281, 300
Ambos, Kai ‘Superior Responsibility’, in Antonio Cassese, Paola Gaeta, and
John R. W. D. Jones (eds.), The Rome Statute of the International Criminal
Court: A Commentary (2001), vol. I 164
Crespi, Alberto, Giuseppe Zuccala
`
, and Frederico Stella, Commentario breve
al Codice penale (1986) 350
Danner, Allison Marston and Jenny S. Martinez, ‘Guilty Associations: Joint
Criminal Enterprise, Command Responsibility, and the Development of
International Criminal Law’, (2005) 93 California Law Review 75, 124 159
Eboe-Osuji, Chile ‘‘‘Complicity in Genocide’’ versus ‘‘Aiding and Abetting
Genocide’’: Construing the Difference in the ICTR and ICTY Statutes’,

(2005) 3 Journal of International Criminal Justice 56 299
Grotius, Hugo De jure belli ac pacis: libri tres (1625) 145
Gustafson, Katrina ‘The Requirement of an ‘‘Express Agreement’’ for Joint
Criminal Enterprise Liability: A Critique of Br

danin’, (2005) 3 Journal of
International Criminal Justice 10 85, 88–9
Henckaerts, Jean-Marie and Louise Doswald-Beck (eds.), Customary
International Humanitarian Law (2005) 143–4, 150
Le Gunehec, Francis ‘Ele
´
ment moral de l’infraction’, in Marie-Franc¸ oise
Homassel (ed.), 1 Juris-Classeur Pe
´
nal Code (2002) 350
Levine, Eugenia ‘Command Responsibility: The Mens Rea Requirement’,
available at www.globalpolicy.org/intljustice/general/2005/command.htm
164, 168
Lieber, Francis, Instructions for the Government of Armies of the United
States in the Field 146
McCormack, Timothy L. H. ‘From Sun Tzu to the Sixth Committee’, in
Timothy L. H. McCormack and Gerry J. Simpson (eds.), The Law of War
Crimes (1997) 147
Meron, Theodor, ‘Editorial Comment: Revival of Customary Humanitarian
Law’ (2005) 99 American Journal of International Law 817 418
Mundis, Daryl A. ‘Crimes of the Commander: Superior Responsibility Under
Article 7(3) of the ICTY Statute’, in Gideon Boas and William A. Schabas
Table of authorities xxiii
(eds.), International Criminal Law Developments in the Case Law of the
ICTY (2003) 164

Mundis, Daryl A. and Fergal Gaynor, ‘Current Developments at the ad hoc
International Criminal Tribunals’, (2005) 3 Journal of International
Criminal Justice 268 104
Parks, William H. ‘Command Responsibility for War Crimes’, (1973) 62
Military Law Review 1 145, 147, 161
Powles, Steven ‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial
Ingenuity and Judicial Creativity?’, (2004) 2 Journal of International
Criminal Justice 606 25
Sandoz, Yves, Christophe Swinarski, and Bruno Zimmerman (eds.),
Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (1987) 152, 168, 173–4
Schabas, William A. The UN International Criminal Tribunals: The Former
Yugoslavia, Rwanda and Sierra Leone (2006) 300
Sun Tzu, The Art of War 145
Singh, Avi ‘Criminal Responsibility for Non-State Civilian Superiors
Lacking De Jure Authority: A Comparative Review of the Doctrine of
Superior Responsibility and Parallel Doctrines in National Criminal
Laws’, (2005) 28 Hastings International and Comparative Law Review
267 155
Special Court for Sierra Leone (SCSL) cases
Prosecutor v. Brima, Kamara, and Kanu, Case No. SCSL-04-16 (‘AFRC Case’)
6, 131–3, 336
Prosecutor v. Koroma, Case No. SCSL-2003-03 131, 267
Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2004-14 (‘CDF
Case’) 6, 131, 266–7
Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15 (‘RUF Case’)
131
Prosecutor v. Taylor, Case No. SCSL-03-01 129–31, 133, 267, 335–6, 374–6
Special Panels for Serious Crimes (SPSC, East Timor) cases
Deputy General Prosecutor v. da Cruz, Alves, de Arau

´
jo, dos Santos a.k.a. Alves,
Tasion, Barreto and Lopes de Carvalho, Case No. 04-2004 269
Deputy General Prosecutor v. Gonsalves, Tavares, Oliveira, Maia Pereira and
Tavares, Case No. 05-2004 268–9
Deputy General Prosecutor v. Gultom, Case No. 10-2004 268
Deputy General Prosecutor v. Nur, Melky, Hilario, Martins, Pereira and da
Costa, Case No. 12-2004 269
xxiv Table of authorities
Prosecutor v. Joni Marques, Manuel da Costa, Joa
˜
o da Costa, Paulo da Costa,
Ame
´
lio da Costa, Hila
´
rio da Silva, Gonsalo dos Santos, Alarico Fernandes,
Mautersa Monis and Gilberto Fernandes, Case No. 09/l2000 133–5
Prosecutor v. Jose Cardoso Fereira, Case No. 04/2001 135–6
Prosecutor v. Soares, Case No. 11-2003 270–1
Supreme Iraqi Criminal Tribunal (SICT) cases
Anfal case 379
Dujail case 138–40, 273–4, 340, 378–9
Table of authorities xxv