Important notes:

Definition of ATTACK: “Attack directed against any civilian population” means a course of
conduct involving the multiple commission of acts referred to in paragraph 1 against any
civilian population, according to or in furtherance of a State or organizational policy to
commit such attack - Article 7(2)(a)

Definition of TORTURE: “Torture” means the intentional infliction of severe pain or

suffering, whether physical or mental, upon a person in the custody or under the control of
the accused; except that torture shall not include pain or suffering arising only from, inherent
in, or incidental to, lawful sanctions - Article 7(2)(e)

ARTICLE 8(2)(c)(i): In the case of an armed conflict not of an international character,

serious violations of article 3 common to the four Geneva Conventions of 12 August
1949, namely, any of the following acts committed against persons taking no active part in
the hostilities, including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention or any other cause:

Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture; [ Count 1]

ARTICLE 25(3)(b): In accordance with this Statute, a person shall be individually

criminally responsible and liable for punishment for a crime within the jurisdiction of the
Court if that person:

Orders, solicits or induces the commission of such a crime which in fact occurs or is
attempted;

ARTICLE 15(3): If the Prosecutor concludes that there is a reasonable basis to proceed
with an investigation, he or she shall submit to the Pre-Trial Chamber a request for
authorization of an investigation, together with any supporting material collected.
Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of
Procedure and Evidence [ The prosecutor after doing a preliminary examination, found
reasonable basis{ determining factor art. 53 (1)(a - c) - Rule 48} for the initiation of an
investigation and {submiited to the PTC a written request- Rule 50(2)}

Article 15(4): If the Pre-Trial Chamber, upon examination of the request and the supporting
material, considers that there is a reasonable basis to proceed with an investigation, and that
the case appears to fall within the jurisdiction of the Court, it shall authorize the
commencement of the investigation, without prejudice to subsequent determinations by
the Court with regard to the jurisdiction and admissibility of a case

ARTICLE 53(1): The Prosecutor shall, having evaluated the information made available to
him or her, initiate an investigation unless he or she determines that there is no reasonable
basis to proceed under this Statute. In deciding whether to initiate an investigation, the
Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a
reasonable basis to believe that a crime within the jurisdiction of the Court has been or is
being committed; (b) The case is or would be admissible under article 17; and (c) Taking into
account the gravity of the crime and the interests of victims, there are nonetheless substantial
reasons to believe that an investigation would not serve the interests of justice.

Article 58(7): As an alternative to seeking a warrant of arrest, the Prosecutor may

submit an application requesting that the Pre-Trial Chamber issue a summons for the
person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to
believe that the person committed the crime alleged and that a summons is sufficient to
ensure the person’s appearance, it shall issue the summons, with or without conditions
restricting liberty (other than detention) if provided for by national law, for the person
to appear. The summons shall contain: (a) The name of the person and any other relevant
identifying information; (b) The specified date on which the person is to appear; (c) A
specific reference to the crimes within the jurisdiction of the Court which the person is
alleged to have committed; and (d) A concise statement of the facts which are alleged to
constitute the crime. The summons shall be served on the person

Article 60(1): Upon the surrender of the person to the Court, or the person’s appearance
before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall
satisfy itself that the person has been informed of the crimes which he or she is alleged to
have committed, and of his or her rights under this Statute, including the right to apply for
interim release pending trial

NIAC REQUIREMENTS:
Triffterer_Ambos_Rome_Statute_Commentary_3rd_ed_2016

The ICRC has taken the position that the conflict under consideration, in order to qualify 869
for the purposes of common article 3 as an armed conflict, must have lead to combat and to
the use of armed forces1416. Notwithstanding the threshold requirements contained in article
8 para. 2 (d) and (f) of the Statute, it is generally established that for a non-international
armed conflict, whether it involves only armed groups or also governmental armed forces on
one side of the conflict, two objective requirements must be met.

First, the hostilities must reach a certain level of intensity 870 1417. The Appeals Chamber in
the Tadic´ case held that there is an armed conflict ‘whenever there is […] protracted armed
violence between governmental authorities and organised armed groups or between such
groups within a state’1418. With regard to the ICC Statute the Pre-Trial Chamber in Bemba
held that the threshold contained in the first sentence of article 8 para. 2 (d) and (f), first
sentence, of the Statute requires any armed conflict not of an international character to reach
a certain level of intensity which exceeds that of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence or other acts of a similar nature1419. In fact, it
was already in the Akayesu judgement that the ICTR had stated that ‘the term armed conflict
in itself suggests the existence of hostilities between armed forces organized to a greater or
lesser extent [and that] [t]his consequently rules out situations of internal disturbances and
tensions’1420. In assessing the required intensity of the conflict Trial Chambers of the ICTY
have considered a variety of indicative criteria1421 such as the gravity of attacks and their
recurrence1422, the number of victims1423, the temporal and territorial expansion of
violence and the collective character of hostilities1424, the mobilization of volunteers and the
distribution and type of weapons among both parties to the conflict1425, whether various
parties were able to operate from a territory under their control1426, an increase in the
number of government forces1427, the fact that the conflict led to a large displacement of
people1428 as well as whether the conflict had attracted the attention of the UN Security
Council and whether it was specifically addressed or even qualified as such by the Security
CounciSecond, the non-governmental armed group(s) involved in the conflict must possess a
certain degree of organization1430 said requirement being inherent in the very notion of
‘armed groups’ notwithstanding the fact that unlike Art. 8 para. 2 (f) neither Art. 8 para. 2 (c)
nor common Art. 3 GC I-IV as such expressis verbis contain such requirement. In Lubanga
the Pre-Trial Chamber held that ‘the involvement of armed groups with some degree of
organisation and the ability to plan and carry out sustained military operations would allow
for the conflict to be characterised as an armed conflict not of an international character’
1431

In order to assess the second requirement, i. e. the organization of the parties to the conflict,
the ICTY has taken into account such factors as the existence of headquarters, designated
zones of operation and the ability to transport and distribute arms1432. In the Limaj case the
Trial Chamber pointed out that some degree of organization by the parties will suffice to
establish the existence of an armed conflict1433. In assessing whether the Kosovo Liberation
Army (KLA) possessed the characteristics of an organized armed group the Trial Chamber in
Limaj took into account inter alia the following criteria: the structure of the KLA with a
general staff and the existence of eleven zones with one commander for each zone1434, the
weapons distribution channels1435, the use of uniforms1436, the adoption of internal
regulations1437, the nomination of a spokesperson1438, the issuance of orders1439, political
statements and communique´s1440, the establishment of headquarters1441, the capacity to
launch co-coordinated action between KLA units1442, the establishment of a military police
and disciplinary rules1443, the ability of the KLA to recruit new members1444 and its
capacity to provide military training1445. With respect to the jurisprudence of the ICC, the
Pre-Trial Chamber in Bemba concurred 872 with Pre-Trial Chamber I in the Lubanga case
(albeit in the context of article 8 para. 2 (f) of the Statute which, unlike Art. 8 para. 2 (c),
expressly requires the armed groups involved in the conflict to be ‘organized’) by stressing
the need for the armed groups in question to have the ability to plan and carry out military
operations for a prolonged period of time1446. In the Bemba decision the Chamber added
that organized armed groups must be under responsible command and that in this regard,
responsible command entails some degree of organization of those armed groups, including
the possibility to impose discipline and the ability to plan and carry out military
operations1447. In the Callixte Mbarushimana decision, the Chamber, referred inter alia to
the FDLR’s hierarchical structure and high level of internal organization, the existence of a
political and a military wing, and the FDLR’s constitutive instrucments which included a
statute, a ‘re`glement d’ordre inte´rieur’ and a disciplinary code which provided the
organisation’s internal disciplinary system1448. Against this background the Chamber was
satisfied that there are substantial grounds to believe that the FDLR as an armed group
possessed the degree of organisation required under article 8 para. 2 (f) of the Statute1449

The sole notion of ‘armed conflict’ in and of itself already excludes the applicability of article
8 para. 2 (c) to internal disturbances, a result that is further confirmed by article 8 para. 2 (d)
of the Statute1450. Paragraph 1 of the introduction to the war crimes part of the elements of
crimes adopted by the Assembly of States Parties under article 9 specifically confirms that
the elements of crimes adopted with regard to article 8 para. 2 (c) are subject to the
limitations contained in article 8 para. 2 (d) of the Statute. In that regard it referred, in
particular, to the criteria referred to during the drafting of common article 3 in 19491451.
Thus, the very term of ‘armed conflict’ in itself already presupposes the existence of
hostilities between armed forces organized to a greater or lesser extent1

Since article 8 para. 2 (c) of the Statute, unlike the second sentence of article 8 para. 2 (f),
does not contain a reference to a protracted armed conflict, there is no minimum duration
requirement of the conflict as such. Moreover, the limitations contained in article 1 para. 1 of
Add. Prot. II do not, subject to the exclusionary rule contained in article 8 para. 2 (d) of the
Statute1456, apply as such. In both the Bemba and the Lubanga decisions it was pointed out
that the requirement contained in article 1 para. 1 of Add. Prot. II, that the organized armed
group(s) exert control over a part of the territory, is not a requirement under article 8 para. 2
(f) and thus even less under article 8 para. 2 (c)1457. 876 In order to render article 8 para. 2
(c) applicable, the conflict must not possess an international character1458.

In practice, it is however hard to imagine which violations of one of the provisions 878
contained in article 8 para. 2 (c) (i)-(iv) would not at the same time ipso facto also qualify as
serious violations of common article 3. This is confirmed by the decisions of the Appeals
Chamber of the ICTY in the Tadic´ case which held for purposes of article 3 of the Statute of
the ICTY that acts constitute serious violations of the laws and customs of war if they
‘constitute a breach of a rule protecting important values’ (which is clearly the case with
regard to common article 3) and that ‘the breach must involve grave consequences for the
victim’ 1462. Thus, the only possible example of a non-serious violation of common article 3
might be the singular passing of a short term (!) imprisonment without adequate judicial
guarantees. In all other cases, and in particular when acts threatening the physical integrity
and safety of persons are committed, the threshold of ‘serious violations’ of common article 3
will always be fulfilled

p. Consequently, in the Bemba decision the Pre-Trial Chamber II simply noted that article 8
para. 2 (c) of the Statute covers crimes committed by persons taking no active part in
hostilities1463. It has to be noted, however, that the list following the word ‘including’ (‘y
compris’ in the French text) is not exhaustive. The Preparatory Commission drafting the
elements of crimes under article 9 of the Rome Statute has further defined the group of
persons protected under article 8 para. 2 (c) by providing that the persons concerned are
either hors de combat, or are civilians, medical personnel, or religious personnel (including
non-confessional non-combatant military personnel carrying out a similar function)1464. The
notion of ‘persons taking no active part in hostilities’ does not only refer to civilians in 880
the strict sense, but also comprises those persons who, while beforehand having possessed the
status of combatants or ‘fighters’, have ceased to take a direct part in hostilities1465. Indeed,
both the ICTY and the ICTR have considered the terms ‘taking active part in hostilities’ and
‘taking direct part’ (as e.g. used in articles 4 and 13 of Add. Prot. II) to have the same
meaning1466

According to the ICRC’s Interpretive Guidance on the notion of direct participation in 881
hostilities, in order to qualify as a direct participation in hostilities, a specific act must meet
three cumulative criteria: First, the act must meet the required threshold of harm, i. e. it must
be likely to adversely affect the military operations of a party to an armed conflict or
alternatively, to inflict death, injury, or destruction. Second, there must be a direct causal link
between the act and the harm and thirdly, there must be a belligerent nexus in that the act
must be specifically designed to directly cause the required threshold of harm in support of a
party to the conflict and to the detriment of the other1467

for the purposes of the principle of distinction in non-international armed conflict, persons
who are members of State armed forces or organized armed groups of a party to the conflict
do not qualify as civilians and that in non-international armed conflicts, organized armed
groups constitute the armed forces of a non-State party to the conflict and consist only of
individuals who have a ‘continuous combat function’, i. e. whose continuous function it is to
take a direct part in hostilities1468

In the Appeal Judgment in the Strugar case the ICTY provided examples of ‘direct
participation in hostilities’, namely bearing, using or taking up arms, taking part in military or
hostile acts, activities, conduct or operations, armed fighting or combat, participating in
attacks against enemy personnel, property or equipment, transmitting military information for
the immediate use of a belligerent, and transporting weapons in proximity to combat
operations1469. In the RUF case the Appeals Chamber of the Special Court for Sierra Leone
held that the use of force in self-defence, whether by peacekeepers or civilians, does not
constitute a direct participation in hostilities1470

The notion of ‘persons placed hors de combat by sickness, wounds, detention or any other
cause’, taken over from common article 3 into article 8 para. 2 (c) of the Statute, is nowadays
defined in article 41 para. 2 of the Add. Prot. I of 1977 under which a person is hors de
combat if he or she is in the power of an adverse party; he or she has clearly expressed an
intention to surrender or has been rendered unconscious or is otherwise incapacitated by
wounds or sickness, and therefore is incapable of defending himself or herself, provided,
however, that in any case he or she abstains from any hostile act and does not attempt to
escape. Besides, article 8 para. 2 (c) of the Statute in line with common article 3, confirms
that detention, too, puts a person hors de combat and that furthermore also other similar
situations can bring about such a status.

a) Paragraph 2(c)(i): Violence to life and person. Article 8 para. 2 (c) (i) prohibits 888
violence to life and persons, and in particular, criminalizes murder of all kinds, mutilation,
cruel treatment and finally torture. The term ‘violence’ frequently occurs throughout the
Statute1477. The elements of crimes related to article 8 para. 2 (c) do not further define the
notion of violence. In the context of article 8 para. 2 (c) (i), it only refers to acts of physical
violence directed against the life or physical integrity of a person. This may be derived,
argumentum e contrario, from the fact that article 4 para. 2 (a) of Add. Prot. II expressly went
beyond the scope of the prohibition contained in common article 3 to also cover violence to
the mental well-being of a person1478. Any such acts directed against the mental well-being
of persons such as e. g. giving the impression that a person would be executed, might,
however, come either under the term of cruel treatment1479 or under that of ‘torture’ 1480

aa) Murder. The term ‘murder’ is also used in article 7 para. 1 (a) of the Statute as
constituting a 889 crime against humanity. Article 7 does not, however, contain a definition
of that term. The ICTY as well as the Special Court for Sierra Leone have held that the
elements of the offence of murder as a crime against humanity and as a war crime are
identical1481. However, in the context of crimes against humanity, such acts must have been
committed as part of a widespread or systematic attack against a civilian population1482. In
the context of article 8 para. 2 (c) (i), to the contrary, also the killing of adversary combatants
constitutes a crime, provided they have laid down their arms or have been placed hors de
combat by sickness, wounds, detention or any other cause1483. The elements of crimes
rightly take the position that apart from persons being hors de combat, also civilians, medical
personnel, as well as religious personnel (including non-confessional noncombatant military
personnel carrying out a similar function) taking no active part in the hostilities, are possible
victims. Thus, it is necessary to establish that at the time of the commission of the crime the
victims were taking no active part in the hostilities1484

With respect to personnel involved in peacekeeping missions, in the Abu Garda Decision,
890 the Chamber noted that protection does not cease if such persons only use armed force in
exercise of their right to self-defence and that any determination as to whether a person is
directly participating in hostilities must be carried out on a case-by-case basis1485. With
regard to the attacks on AMIS personnel, the Chamber in the Jerbo decision found that there
was no evidence suggesting that prior to the attack or at the time of the attack AMIS
personnel took any direct part in hostilities or used force beyond self-defence1486. Even
single individual murders amount to a violation of that provision, provided the required nexus
to the armed conflict is established

The ICTR, ICTY and the Special Court for Sierra Leone have consistently defined murder as
the death of the victim which results from an act or omission by the accused, committed with
the intent either to kill or to cause serious bodily harm with the reasonable knowledge that it
would likely lead to death1488. In the specific context of article 8 para. 2 (c) (i), it refers to
the intentional killing of one or more persons protected under that provision without lawful
justification. This is confirmed by the elements of crimes with respect to the war crime of
murder committed in non-international armed conflict, which uses the formula ‘killed one or
more persons’. 892 The crime of murder requires a causal link between the conduct and the
result and may be committed by action or omission1489. It must be established beyond
reasonable doubt that the perpetrator’s conduct substantially contributed to the death of the
victim1490.

cc) Cruel treatment. Unlike the other terms used in article 8 para. 2 (c) (i), the notion of 894
‘cruel treatment’ is not contained in other provisions of Part 2 of the Statute1499. It is
however contained in most of the universal or regional human rights instruments such as,
inter alia, article 7 of the Covenant on Civil and Political Rights, article 5 of the Universal
Declaration of Human Rights, article 5 para. 2 of the American Convention on Human Rights
and article 5 second sentence of the African Charter on Human and People’s Rights1500.
With regard to humanitarian law, references to cruel treatment are contained in article 87 of
the Third Geneva Convention and article 4 para. 2 (a) of Add. Prot. II. According to the
jurisprudence of the ICTY1501, the offence of cruel treatment under common article 3 (and
accordingly under article 8 para. 2 (c) (i) of the Statute) carries the same meaning as inhuman
treatment in the context of the grave breaches provisions1502. In the same vein, the
Preparatory Commission drafting the elements of crimes considered that the content of the
term ‘inhuman treatment’ as contained in article 8 para. 2 (a) (ii) and that of the term of ‘cruel
treatment’ as used in article 8 para. 2 (c) (i) are identical. Accordingly the elements for both
crimes are also identical in that regard. Thus, for the purposes of common article 3, all acts of
torture by the same token also constitute cruel treatment1503. However, this latter offence
further extends to all intentional acts or omissions which cause serious mental or physical
suffering or injury or constitute a serious attack on human dignity1504

5. Indeed, whether a particular act amounts to cruel treatment is to be determined on a

case-by-case basis1506. In the Limaj case, the Trial Chamber held that under the specific
circumstances of this case ‘unlawful seizure’, ‘unlawful detention for prolonged periods’ and
‘interrogation’ in and of themselves did not amount to a serious attack on human dignity
within the meaning of cruel treatment under Article 3 of the Statute of the ICTY, thereby
leaving open the possibility of a different legal qualification of such acts under different
circumstances1507

The notion of ‘internal disturbances and tensions’ is not defined in article 8 para. 2 (d).
Instead the provision simply contains a non-exhaustive list of examples which might however
serve as guidance in order to determine the existence of internal disturbances and tensions.
Generally speaking, one might say that internal disturbances exist when a State uses armed
force to maintain order without that use of force amounting to an armed conflict. Internal
tensions might be said to exist when such force is used as a preventive measure1549.
1416 See CICR (ed.), Convention de Ge´ne`ve (1956) 40 et seq. (in particular 42). 1417 See only Prosecutor v.
Bemba, ICC-01/05-01/08, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor, 15 June 2009, para. 225. 1418 Prosecutor v. Tadic´, IT-94-1-AR72,
Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995,
para. 70. See also Prosecutor v. Lubanga Dyilo, ICC-01/04-01/ 06, Decision on the confirmation of charges,
Pre-Trial Chamber I, 29 January 2007, para. 233; Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Chamber II,
Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June
2009, para. 229. 1419 Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Chamber II, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June 2009, para. 225

1420 Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, Trial Chamber, 2 September 1998, para. 620; recalled in
Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor, 15 June 2009, para. 230. 1421 For a summarily depiction of
these various indicative factors, see Prosecutor v. Fatmir Limaj et al., IT-03- 66-T, Judgment, Trial Chamber, 30
November 2005, paras. 94–134, 170; Prosecutor v. Ramush Haradinaj et al., No. IT-04-84-T, Judgment, Trial
Chamber, 3 April 2008, para. 49. The ICTR uses the same test as the ICTY, see Prosecutor v. Akayesu,
ICTR-96-4-T, Judgment, Trial Chamber, 2 September 1998, paras. 619–26; Prosecutor v. Cle´ment Kayishema
and Obed Ruzindana, No. ICTR-95-1-T, Judgment, Trial Chamber II, 21 May 1999, para. 170; Prosecutor v.
Musema, ICTR-96-13-A, Judgment and Sentence, Trial Chamber I, 27 January 2000, para. 250; Prosecutor v.
Rutaganda, ICTR-96-3-T, Judgment and sentence, Trial Chamber I, 6 December 1999, paras 92–93; Prosecutor
v. Andre´ Ntagerura et al. (Case Name ‘Cyangugu’), No. ICTR-99-46-T, Judgment and sentence, Trial Chamber
III, para. 767; Prosecutor v. Semanza, ICTR-97-20-T, Judgment, Trial Chamber, 15 May 2003, paras. 355 and
514; Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Judgment, Trial Chamber I, 7 June 2001, paras. 99–101;
Prosecutor v. Jean de Dieu Kamuhanda, No. ICTR-95-54A-T, Judgment, Trial Chamber II, 22 January 2004,
paras. 721–24. For an analysis of the relevant jurisprudence see La Haye, War Crimes in Internal Armed
Conflicts (2010) 9 et seq. 1422 Prosecutor v. Tadic´, Opinion and Judgment, Trial Chamber, IT-94-1-AR72,
Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995,
para. 565; Cˇelebic´i Case, IT96-21-A, Judgment, Appeals Chamber, 20 February 2001, paras. 186–89. 1423
Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Decision on the confirmation of charges, Pre-Trial Chamber I,
29 January 2007, para. 235. 1424 Prosecutor v. Tadic´, Opinion and Judgment, Trial Chamber, IT-94-1-AR72,
Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995,
paras. 566, 568; Prosecutor v. Kunarac, Judgment, Trial Chamber, 22 February 2001, para. 567, Cˇelebic´i Case,
IT-96-21-A, Judgment, Appeals Chamber, 20 February 2001, para. 186, Prosecutor v. Stakic´, IT-97-24-T,
Judgment, Trial Chamber II, 31 July 2003, para. 572. 1425 Cˇelebic´i Case, IT-96-21-A, Judgment, Appeals
Chamber, 20 February 2001, para. 188; Prosecutor v. Miloˇsevié, IT-02-54-T, Decision on Motion for Judgment
of Acquittal, 16 June 2004, paras. 30–31; Prosecutor v. Limaj, IT-03-66-T, Judgment, Trial Chamber, 30
November 2005, paras. 136, 138, 156, 169, 161, 164–166. 1426 Cˇelebic´i Case, IT-96-21-A, Judgment,
Appeals Chamber, 20 February 2001, para. 187; Prosecutor v. Limaj, IT-03-66-T, Judgment, Trial Chamber, 30
November 2005, paras. 146, 158, 159. 1427 Prosecutor v. Limaj, IT-03-66-T, Judgment, Trial Chamber, 30
November 2005, paras. 146, 159 and 164- 65.1428 Prosecutor v. Limaj, IT-03-66-T, Judgment, Trial Chamber,
30 November 2005, para. 167. 1429 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Decision on the
confirmation of charges, Pre-Trial Chamber I, 29 January 2007, para. 235; Cˇelebic´i Case, IT-96-21-A,
Judgment, Appeals Chamber, 20 February 2001, para. 190; Prosecutor v. Tadic´, IT-94-1-AR72, Decision on the
Defense Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para. 567. 1430
Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor, 15 June 2009, para. 234. See also Prosecutor v. Limaj,
IT-03-66-T, Judgment, Trial Chamber, 30 November 2005, paras. 94–134, 170. 1431 Prosecutor v. Lubanga
Dyilo, ICC-01/04-01/06, Decision on the confirmation of charges, Pre-Trial Chamber I, 29 January 2007, para.
233

1432 Prosecutor v. Milosˇevié, IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, paras.
23–24. 1433 Prosecutor v. Limaj, No. IT-03-66-T, Judgment, Trial Chamber, 30 November 2005, para. 89
(emphasis added). 1434 Ibid., paras. 94–97. 1435 Ibid., paras. 121–22. 1436 Ibid., paras. 123–24. 1437 Ibid.,
paras. 98 and 110–12. 1438 Ibid., paras. 99 and 102. 1439 Ibid., paras. 100, 105, 109. 1440 Ibid., paras. 101–3.
1441 Ibid., para. 104. 1442 Ibid., para. 108. 1443 Ibid., paras. 113–17. 1444 Ibid., para. 118. 1445 Ibid., paras.
119–20. 1446 Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, Pre-Trial
Chamber I, 29 January 2007, para. 234; Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Chamber II, Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June 2009, para.
233; Prosecutor v. Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, 8 February 2010, para.
91. 1447 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Decision on the confirmation of charges, Pre-Trial
Chamber I, 29 January 2007, para. 232; Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Cha , Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June 2009, para.
234. 1448 Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of Charges, Pre
Trial Chamber I, 16 December 2011, para. 104. 1449 Ibid., para. 106

0 As to the exclusion of mere internal disturbances and similar tensions contained in article 8 para. 2 (d) see
below mn 910 et seq. 1451 Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, Trial Chamber, 2 September 1998,
para. 619; for a more detailed analysis of these criteria see Pictet (ed.), Commentary iv, (1958) article 3, 36.
1452 Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, Trial Chamber, 2 September 1998, para. 620. 1453
Prosecutor v. Tadic´, IT-94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction,
Appeals Chamber, 2 October 1995, para. 69; confirmed by Prosecutor v. Delalic´ et al., IT-96-21-T, Judgment,
Trial Chamber, 16 November 1998, para. 185 and Prosecutor v. Kayishema, ICC-01/05-01/08, PreTrial
Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor,
15 June 2009, paras. 176, 182 et seq. 1454 Prosecutor v. Tadic´, IT-94-1-AR72, Decision on the Defense Motion
for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, paras. 572 and 617. 1455
Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, Trial Chamber, 2 September 1998, para. 636. 1456 For details
see Zimmermann and Geiß, article 8 para. 2 (d), mn 910. 1457 Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial
Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor,
15 June 2009, para. 236; Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Decision on the confirmation of
charges, Pre-Trial Chamber I, 29 January 2007, para. 233. 1458 For further details see Zimmermann and Geiß,
Preliminary remarks on article 8 para. 2 (c) – (f), mn 823. 1459 The chapeau of that provision reads: ‘The
International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be
committed serious violations of article 3 common to the Geneva Conventions …’ (emphasis added). 1460 See
Prosecutor v. Tadic´, IT-94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction,
Appeals Chamber, 2 October 1995, para. 128, which stated that ‘customary international law imposes criminal
liability for serious violations of common article 3’ (emphasis added). But see also for a

1462 Prosecutor v. Tadic´, IT-94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on
Jurisdiction, Appeals Chamber, 2 October 1995, para. 94. 1463 See Prosecutor v. Bemba, ICC-01/05-01/08,
Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor, 15 June 2009, para. 237. 1464 See the element of crimes which is common to all provisions
contained in article 8 para. 2 (c). 1465 Bothe et al. (eds.), New Rules (1982) 640. 1466 See Prosecutor v.
Akayesu, ICTR-96-4-T, Judgment, Trial Chamber, 2 September 1998, para. 629, respectively Prosecutor v.
Tadic´, IT-94-1-T, Judgment, Trial Chamber, 7 May 1997, para. 615. See also Prosecutor v. Katanga and
Ngudjolo Chui, CC-01/04-01/07, Decision on the confirmation of charges, Pre-Trial Chamber I, 26 September
2008, para. 266. 1467 ICRC, Interpretive guidance on the notion of direct participation in hostilities (2009),
available at: last accessed September 2015, 46. For a critique see Schmitt (2010) 42 NYJIl&Pol 697, 739

1477 See inter alia article 7 para. 1 (g), article 8 para. 2 (b) (xxii), article 8 para. 2 (d) and (f) and finally article 8
para. 2 (e) (vi). 1478 Sandoz et al. (eds), Commentary (1987), mn 4532. 1479 See below mn 894. 1480 See
below mn 895. 1481 Prosecutor v. Blagojevic´, IT-02-60-T, Judgment, Trial Chamber I, 17 January 2005, para.
556; Prosecutor v. Krnojelac, IT-97-25-T, Judgment, Trial Chamber II, 15 March 2002, para. 323; Prosecutor v.
Naletilic and Martinovic, IT-98-34-T, Judgment, Trial Chamber, 31 March 2003, para. 248; Prosecutor v. Taylor,
SCSL-03-01- T, Judgment, Trial Chamber II, 18 May 2012, para. 412. 1482 For details see Hall and Ambos,
article 7, mn 18 et seq. 1483 See already above mn 884 et seq. 1484 See above mn 884 et seq. See also
Prosecutor v. Nourain and Jamus, No. ICC-02/05-03/09, Decision on the confirmation of charges, Pre-Trial
Chamber I, 7 March 2011, para. 102

1485 Prosecutor v. Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, 8 February 2010,
confirmed in Prosecutor v. Nourain and Jamus, ICC-02/05-03/09, Decision on the confirmation of charges,
PreTrial Chamber I, 7 March 2011, para. 102. 1486 Ibid., para. 703. 1487 (1996) ILC Yearbook 96. 1488 See e.
g. Prosecutor v. Blagojevic´, IT-02-60-T, Judgment, Trial Chamber I, 17 January 2005, para. 556; Prosecutor v.
Kvoc´ka et al., IT-98-30/1-A, Judgment, Appeals Chamber, 28 February 2005, para. 259; Proscuter v. Delalic´ et
al., IT-96-21-A, Judgment, Appeals Chamber, 20 February 2001, para. 423; Prosecutor v. Krnojelac, IT97-25-T,
Judgment, Trial Chamber II, 15 March 2002, para. 324; Prosecutor v. Jelisic, IT-95-10-T, Judgment, Trial
Chamber, 14 December 1999, para. 35; Prosecutor v. Blaˇskic´, IT-95-14-T, Trial Chamber, Judgment, 3 March
2000, para. 181; Prosecutor v. Stakic´, IT-97-24-T, Judgement, Trial Chamber II, 31 July 2003, para. 584;
Prosecutor v. Krstic´, IT-98-33-T, Judgment, Trial Chamber, 2 August 2001, para. 485. For ICTR jurisprudence,
see Prosecutor v. Kayishema, ICTR-95-1-T, Judgment, Trial Chamber II, 21 May 1999, para. 140; Prosecutor v.
Bagilishema, ICTR-95-1A-T, Judgment, Trial Chamber I, 7 June 2001, paras. 84–85. Regarding the Special
Court for Sierra Leone see Prosecutor v. Taylor, SCSL-03-01-T, Judgment, Trial Chamber II, 18 May 2012,
para. 412. 1489 Prosecutor v. Perisic´, IT-04-81-T, Judgment, Trial Chamber I, 6 September 2011, para. 103;
Prosecutor v. Bemba, ICC-01/05-01/08, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor, 15 June 2009, para. 274. See also Prosecutor v. Katanga and
Ngudjolo Chui, ICC-01/04-01/07, Decision on the confirmation of charges, Pre-Trial Chamber I, 26 September
2008, para. 287. 1490 Prosecutor v. Oric´, No. IT-3-68-T, Judgment, Trial Chamber, 30 June 2006, para. 347;
Prosecutor v. Brima et al., IT-95-11-T, Judgment, Trial Chamber 12 June 2007, para. 689; Prosecutor v. Taylor,
SCSL-03-01-T, Judgment, Trial Chamber II, 18 May 2012, para. 413. 1491 Prosecutor v. Perisic´, IT-04-81-T,
Judgment, Trial Chamber I, 6 September 2011, para. 103; Prosecutor v. Kvoc´ka et al., IT-98-30/1-A, Judgment,
Appeals Chamber, 28 February 2005, para. 260; Prosecutor v. Martic, IT95-11-T, Judgment, Trial Chamber, 12
June 2007, para. 59; Prosecutor v. Krnojelac, IT-97-25-T, Judgment, Trial Chamber II, 15 March 2002, para.
326; Prosecutor v. Tadic´, IT-94-1-T, Judgment, Trial Chamber, 7 May 1997, para. 240

1499 But see article 55 of the Statute, which provides that a person who is subject to an investigation under the
Statute, shall not be subjected to any form of cruel, inhuman or degrading treatment or punishment; for details
see Hall and Jacobs, article 55, mn 6. 1500 The European Convention does not refer to ‘cruel treatment’; instead
its article 3 uses the terms torture and inhuman or degrading treatment or punishment. 1501 Prosecutor v.
Delalic´ et al., IT-96-21-T, Judgment, Trial Chamber, 16 November 1998, para. 443. 1502 See above Do¨rmann,
article 8 para. 2 (a) (ii), mn 95. 1503 Prosecutor v. Delalic´ et al., IT-96-21-T, Judgment, Trial Chamber, 16
November 1998, para. 443. 1504 Ibid.

1506 Prosecutor v. Limaj, IT-03-66-T, Judgment, Trial Chamber, 30 November 2005, para. 232. 1507 Ibid

1549 Sandoz et al. (eds), Commentary (1987), mn 4477

INDIVIDUAL CRIMINAL RESPONSIBILITY

Article 25(3)(b) - A 18 person who orders a crime is not a mere accomplice but rather an
indirect perpetrator, using a subordinate to commit the crime122. Indeed, the identical article
2 para. 1 (b) of the 1996 Draft Code was intended to provide for the criminal responsibility of
mid-level officials who order their subordinates to commit crimes123. The ICTR, in the
Akayesu judgment, held that ‘ordering implies a superior-subordinate relationship’ whereby
‘the person in a position of authority uses it to convince (or coerce) another to commit an
offence’ 124. Such a – at least de facto125 – ‘superior-subordinate relationship’ is also the
first and basic requirement of command or superior responsibility as first confirmed in the
‘Celebici’ case126 and adopted by the subsequent case law of the ad hoc Tribunals127. The
ICC case law so far also requires a ‘position of authority’ from which the person responsible
has to ‘instruct’ another person to commit a crime128, but, apart from that, it does not
distinguish ordering from the other forms of accessorial liability of subparagraph (b)129. In
any case, the first alternative in subparagraph (b) (‘[o]rders’) complements the command
responsibility provision (article 28): in the latter case the superior is liable for an omission, in
the case of an order to commit a crime the superior is liable for commission for having
‘ordered’. In conclusion, the first alternative in subparagraph (b) actually belongs to the
forms of perpetration provided for in subparagraph (a), being a form of commission ‘through
another person’ 130; as a consequence, any additional subjective requirement, such as the
‘intent to destroy’ in Article 6, must be fulfilled

Soliciting a crime means, inter alia, ‘urging, advising, commanding, or otherwise inciting 19
another to commit a crime’ 132. Similarly, inducing entails the ‘enticement or urging of
another person to commit a crime’ 133. Thus, both terms basically refer to a situation where a
person is influenced by another to commit a crime134. In fact, the French version of the
Statute speaks of ‘sollicite ou encourage’, thereby using a form of solicitation to express the
English term ‘induce’. In substance, in both cases a person is caused to commit a crime135.
Such ‘causal’ influence is normally of a psychological nature (persuasion), but may also take
the form of physical pressure (coercion) within the meaning of vis compulsiva136. It may
also occur in a chain, i. e., a person induces another to induce a third person to commit a
crime137. In contrast to cases of ‘ordering’, a superior-subordinate relationship is not
necessary138. In both cases, however, the conduct must have a ‘direct effect on the
commission or attempted commission of the crime’ 139

The Pre Trial Chamber of the ICC has taken this all one step further in a decision in the Katanga and
Ngudjolo case, where the judges decided that the ‘control over the crime’ amounted to ‘control over the
organization’ (Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Confirmation of Charges Decision,
ICC-01/04-01/07-717, 30 September 2008, paragraph 500). Now, the requirements of indirect
perpetration include the existence of an organized apparatus of power, within which the direct and
indirect perpetrators operate, and which enables the indirect perpetrator to secure the commission of the
crimes (Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, 30 September 2008,
paragraph 515-518).

https://opiniojuris.org/2021/04/08/a-new-approach-to-criminal-responsibility-discussing-the-separate-o
pinions-on-indirect-co-perpetration-in-the-ntaganda-appeals-judgment/

Contrary Werle and Jessberger, Principles (2014) 214 arguing that ‘ordering’ constitutes a sub-category of
instigation; also Satzger, Internationales Strafrecht (2013) § 15 mn. 61. 123 1996 ILC Draft Code, p. 25 (para.
14).

124 Prosecutor v. Akayesu, No. ICTR-96-4-T, Judgment, TC, 2 September 1998, para. 483 . In the same vein
Prosecutor v. Krstic, No. IT-98-33/T, Judgment, TC, 2 August 2001, para. 601 ; Prosecutor v. Stakic´, No.
IT-97-24-T, Judgment, TC, 31 July 2003, para. 445 ; see also Prosecutor v. Mrksic´ et al., No.IT-95-13/1-T,
Judgment, TC, 27 September 2007, para. 550 ; Prosecutor v. Martic´, No. IT-95-11-T, Judgment, TC, 12 June
2007, para. 441 ; Prosecutor v. Tolimir, No. IT-05-88/2-T, Judgment, TC, 12 December 2012, para. 905 ;
Prosecutor v. Stanisic´ and Simatovic´, No. IT-03-69-T, Judgment Vol. II, TC, 30 May 2013, para. 1263 . 125
Cf. for example, Prosecutor v. Boskoski and Tarculovski, No. IT-04-82-A, Judgment, AC, 19 May 2010, para.
164 and Prosecutor v. Ntawukulilyayo, No. ICTR-05-82-T, Judgment and Sentence, TC, 3 August 2010, para.
416 . 126 Prosecutor v. Delalic´ et al., No. IT-96-21-T, Judgment, TC, 16 November 1998, paras. 348 et seq. .
Cf. Zahar and Sluiter, ICL Introduction (2008) 261 et seq. 127 Cf. Prosecutor v. Renzaho, No. ICTR-97-31-T,
Judgment, TC, 14 July 2009, paras. 744 et seq. ; Prosecutor v. Bizimungu, No. ICTR-00-56B-A, Judgment, AC,
30 June 2014, para. 73 ; Prosecutor v. Djordjevic´, No. IT-05-87/1-T, Judgment, TC, 23 February 2011, para.
1881 ; Prosecutor v. Gotovina et al., No. IT-06- 90-T, Judgment Vol. II, TC, 15 April 2011, para. 1963 ;
Prosecutor v. Tolimir, No. IT-05-88/2-T, Judgment, TC, 12 December 2012, para. 905 ; Prosecutor v. Brima et
al., No. SCSL-2004-16-PT, Further Amended Consolidated Indictment, 18 February 2005, para. 36 ; see also
with regard to ECCC Prosecutor v. Khieu and Nuon, No. 002/19-09-2007/ECCC/TC, JudJudgment, TC, 7
August 2014, para. 715 . For a summary of the earlier case law see Ambos, in: Cassese et al. (eds.), The Rome
Statute of the ICL (2002) 815 et seq. and Cryer, in: id. et al., Introduction to ICL (2014) 353, 375 et seq. For
case law references since World War II see Finnin, Accessorial Modes of Liability (2012) 43 et seq. 128
Prosecutor v. Mudacumura, No. ICC-01/04-01/12-1Red, Decison on the Prosecutor’s Application under Article
58, PTC II, 13 July 2012, paras. 63–5 ; Prosecutor v. Bosco Ntaganda, No. ICC-01/04-02/06-309, Decision on
the Confirmation of Charges, PTC II, 9 June 2014, para. 145 ; conc. Prosecutor v. Gbagbo, No.
ICC-02/11-01/11-656-Red, Decision on the Confirmation of Charges, PTC I, 12 June 2014, paras. 243, 245 .
129 See especially Prosecutor v. Gbagbo, No. ICC-02/11-01/11-656-Red, Decision on the Confirmation of
Charges, PTC I, 12 June 2014, para. 243 where PTC I puts the forms of liability of subparagraph (b) on an equal
footing with the exception of a position of authority as a special element of ordering. In its application to the
case it does not distinguish between ordering and (normally) instigating either (esp. para. 246: ‘… instructed or
otherwise instigated …’); in the same vein, Prosecutor v. Blé Goudé, No. ICC-02/11-02/11-186, Decision on the
Confirmation of Charges, PTC, 11 December 2014, para. 159 , holding that ‘soliciting’, ‘inducing’ and
‘ordering’, are all form of instigation, and overlap with each other ‘with the exception of the requirement of a
position of authority held by the person vis-à-vis the perpetrator(s) of the crime, which is particular to ‘ordering’
and is not a necessary element of ‘soliciting’ or ‘inducing’

132 Black (ed.), Black’s Law Dictionary (1999) 1398; American Law Institute, Model Penal Code and
Commentaries (1985) § 5.02 (1). 133 Black (ed.), Black’s Law Dictionary (1999) 779. 134 See also Prosecutor
v. Gbagbo, No. ICC-02/11-01/11-656-Red, Decision on the Confirmation of Charges, PTC I, 12 June 2014, para.
243 (even including ‘ordering’) ; Prosecutor v. Bosco Ntaganda, No. ICC-01/04-02/06-309, Decision on the
Confirmation of Charges, PTC II, 9 June 2014, para. 153 (inducing as exerting influence over another person) .
135 Cf. Ambos, Der Allgemeine Teil (2004) 481 et seq. I do not longer follow the view of the First Edition, that
a meaningful terminological distinction between both terms can be made. For an ‘umbrella’ function of
soliciting also Eser, in: Cassese et al. (eds.), The Rome Statute of the ICC (2002) 767, 797 with fn. 117.
Different Militello (2007) 5 JICJ 941, 947. See also Werle and Jessberger, Principles (2014) 213-4. 136 Unlike
vis absoluta, vis compulsiva leaves the person still a certain freedom to act and decide (cf. Jescheck and
Weigend, Strafrecht. Allgemeiner Teil (1996) 224). 137 Cf. Vest, Genozid durch organisatorische Machtapparate
(2002) 203 et seq., 238. 138 In this sense, see also Prosecutor v. Nchamihigo, No. ICTR-01-63-A, Judgment,
AC, 18 March 2010, para. 188 (‘a position of authority is not a required element under this mode of liability’) ;
Prosecutor v. Tolimir, No. IT-05-88/2-T, Judgment, TC, 12 December 2012, para. 902 ; Prosecutor v. Ble´
Goude´, No. ICC-02/11-02/11-186, Decision on the Confirmation of Charges, PTC, 11 December 2014, para.
159 (‘the requirement of a position of authority… is not a necessary element of “so

Heller and Dubber, Handbook (2011) 593, 607. 139 Prosecutor v. Mudacumura, No. ICC-01/04-01/12-1Red,
Decison on the Prosecutor’s Application under Article 58, PTC II, 13 July 2012, para. 63 (regarding ordering) ;
Prosecutor v. Bosco Ntaganda, No. ICC-01/04-02/06-309, Decision on the Confirmation of Charges, PTC II, 9
June 2014, paras. 145, 153 ; Prosecutor v. Gbagbo, No. ICC-02/11-01/11-656- Red, Decision on the
Confirmation of Charges, PTC I, 12 June 2014, para. 247