82
190.
It should be noted that this notion is spelled out in the Secretary General’s Report,
according to which:
The Secretary-General believes that all persons who participate in the planning,
preparation or execution of serious violations of international humanitarian law in the
former Yugoslavia are individually responsible for such violations.232
Thus, all those who have engaged in serious violations of international humanitarian law,
whatever the manner in which they may have perpetrated, or participated in the perpetration
of those violations, must be brought to justice. If this is so, it is fair to conclude that the
Statute does not confine itself to providing for jurisdiction over those persons who plan,
instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning,
preparation or execution. The Statute does not stop there. It does not exclude those modes
of participating in the commission of crimes which occur where several persons having a
common purpose embark on criminal activity that is then carried out either jointly or by
some members of this plurality of persons. Whoever contributes to the commission of
crimes by the group of persons or some members of the group, in execution of a common
criminal purpose, may be held to be criminally liable, subject to certain conditions, which
are specified below.
191.
The above interpretation is not only dictated by the object and purpose of the Statute
but is also warranted by the very nature of many international crimes which are committed
most commonly in wartime situations. Most of the time these crimes do not result from the
criminal propensity of single individuals but constitute manifestations of collective
criminality: the crimes are often carried out by groups of individuals acting in pursuance of
a common criminal design. Although only some members of the group may physically
perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or
villages, etc.), the participation and contribution of the other members of the group is often
vital in facilitating the commission of the offence in question. It follows that the moral
gravity of such participation is often no less – or indeed no different – from that of those
actually carrying out the acts in question.
192.
Under these circumstances, to hold criminally liable as a perpetrator only the person
who materially performs the criminal act would disregard the role as co-perpetrators of all
232
Ibid., para 54 (emphasis added).
Case No.: -94-1-A
15 July 1999