Damned If You Don’t: Liability for Omissions in International Criminal Law

Authored by: Christopher Gosnell

The Ashgate Research Companion to International Criminal Law

Print publication date:  May  2013
Online publication date:  March  2016

Print ISBN: 9781409419181
eBook ISBN: 9781315613062
Adobe ISBN: 9781317043157


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In 2009, the ICTY Appeals Chamber upheld Veselin Šljivančanin’s conviction for torture, and added a conviction for murder, on the basis of ‘aiding and abetting by omission’. Šljivančanin was not convicted of superior responsibility because his subordinates, a military police unit that had transferred the victims into the custody of a group of militiamen who killed the victims; he was instead found to have been an accessory of the perpetraitors for having failed to prevent the transfer. A three-part test of liability was applied: (i) knowledge of the likely crime of the perpetrator; (ii) a duty of action arising from a rule of international humanitarian law; and (iii) a ‘capacity to act’. 1 1

Prosecutor v Mrkšić & Šljivančanin (Appeal Judgment) ICTR-95-13/1-A (5 May 2009) paras 148–159.

Along the way, the Appeals Chamber abandoned the requirement that the assistance of an aider and abettor be ‘specifically directed’ towards the crime. 2 2

Prosecutor v Mrkšić & Šljivančanin (Appeal Judgment) (n 1) para 159. See Prosecutor v Lukić & Lukić (Appeal Judgment) IT-98-32/1-A (4 December 2012) para 424.

Šljivančanin was therefore not required to have withdrawn the military police for the purpose of facilitating the crime, nor, according to the Appeals Chamber, was there any need to show that the militiamen were aware, much less encouraged, by the alleged inactivity. 3 3

Šljivančanin’s sentence was later reduced after a review hearing, but without calling into question the legal standards established: Prosecutor v Mrkšić & Šljivančanin (Review Judgment) IT-9-13/1-R.1 (8 December 2010).

At least two other accused have been convicted under the same form of liability. 4 4

Prosecutor v Popović et al. (Trial Judgement) IT-05-88-T (10 June 2010) paras 1543-1563 (convicting Borovčanin, for whom the author acted as counsel, of aiding and abetting murder by omission) and paras 1985-1991 (convicting Pandurević on the same basis).

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