9

Ordering
m a n u e l j . v e n tu r a *

9.1 Introduction
1. Ordering, a very close relative of instigating, has generally been considered an
accessorial mode of liability, particularly at the ICC (despite the contrary view of some
commentators).1 In light of its elements, ordering could even be described as ‘aggravated
instigating’. While ordering can be found in the statutes of all modern international
criminal tribunals,2 its requisite elements have not been subject to significant contro-
versy or focused academic scrutiny. These elements can be traced back to the moment
the ICTY first turned its attention to modes of liability. It held, on the basis of numerous
World War II modes of liability cases, that most modes (including ordering) require
intent on the part of the accused and that the accused’s actions contribute to the relevant
crime.3 However, subsequent jurisprudence demonstrates that, beyond this initial,
generalized and undifferentiated analysis (which some cases simply relied upon by

* The views expressed herein are those of the author and do not necessarily reflect the views of the Special
Tribunal for Lebanon.
1
See K. Ambos, Treatise on International Criminal Law – Volume I: Foundations and General Part (Oxford:
Oxford University Press, 2013), at 163 (arguing that a person who orders a crime is an indirect perpetrator);
K. Ambos, ‘Article 25: Individual Criminal Responsibility’, in O. Triffterer and K. Ambos (eds.), The Rome
Statute of the International Criminal Court: A Commentary (3rd edn, Munich: C.H. Beck, 2016), at 1001, para.
18 (arguing that a person who orders a crime is an indirect perpetrator). But see ICC, Lubanga, Appeals
Chamber Judgment, ICC-01/04-01/06-3121-Red, 1 December 2014, para. 462 (holding that the ICC Statute
distinguishes between the commission of a crime – principal liability (Art. 25(3)(a)) – and contributions to the
commission of a crime – accessorial liability (Art. 25(3)(b)–(d)); ordering at the ICC is found in Art. 25(3)(b)
and is thus, accordingly, an accessorial mode). See also W. A. Schabas, The International Criminal Court:
A Commentary on the Rome Statute (2nd edn, Oxford: Oxford University Press, 2016), at 574; E. van Sliedregt,
Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 108–109;
G. Werle and F. Jessberger, Principles of International Criminal Law (3rd edn, Oxford: Oxford University Press,
2014), at 196, 213. Note, however, that the ICC Appeals Chamber has recently held that a person who is
responsible under Art. 25(3)(b) is not necessarily less culpable than a person who is responsible under
Art. 25(3)(a) for the purposes of sentencing: ICC, Bemba et al., Appeals Chamber Sentencing Judgment,
ICC-01/05-01/13-2276-Red, 8 March 2018, paras. 59–60.
2
See Art. 7(1) ICTY Statute (see also Art. 2 ICTY Statute (ordering the commission of grave breaches of the
Geneva Conventions (1949)); Art. 6(1) ICTR Statute (see also Art. 4 ICTR Statute (ordering the commission of
serious violations of common Art. 3 of the Geneva Conventions (1949) and Additional Protocol II (1977)); Art.
25(3)(b) ICC Statute; Section 14.3(b) Regulation on Panels with Exclusive Jurisdiction over Serious Criminal
Offences (East Timor Tribunal); Art. 6(1) SCSL Statute (see also Art. 3 SCSL Statute (ordering the commission
of serious violations of common Article 3 of the Geneva Conventions (1949) and Additional Protocol II (1977));
Art. 29 ECCC Law (see also Art. 6 ECCC Law (ordering the commission of grave breaches of the Geneva
Conventions (1949)); Art. 10(2) Statute of the Extraordinary African Chambers; Art. 16(1)(a), Law on Specialist
Chambers and Specialist Prosecutor’s Office (Kosovo Tribunal).
3
ICTY, Tadić, Trial Chamber Judgment, IT-94-1-T, 7 May 1997, para. 674. See also paras. 675–680.

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 or de rin g 285

general reference),4 and unlike the case for some other modes of liability, World War II-
era ordering case law and examples were generally not relied upon for the further
articulation of the precise actus reus and mens rea requirements of ordering.5 Rather,
the early development of ordering was largely a judge-driven endeavour, with cases
relying on few, if any, explicit sources. Subsequent cases then tended to rely upon these
judgments by reference.6
2. It is evident from these early cases that there is only one principle that appears to have
been firmly and explicitly based on specific World War II-era ordering cases. This
principle is the notion that an order need not be given by a superior directly to the
person(s) who carry out the relevant crime; a principle that was inferred from a World
War II-era conviction for the passing on of criminal orders.7 Indeed, when precise and
focused appellate attention on ordering and the articulation of its (mens rea) requirements
arrived, reliance was placed on (selective and arguably inapposite) domestic law in
addition to ICL jurisprudence on JCE.8 Nevertheless, these beginnings and the many
cases that have subsequently considered ordering not only prove its widespread applica-
tion and recognition, but also help to identify the elements of this mode of liability.
Despite the relative consistency of the case law, a number of open questions also remain
unexplored. Furthermore, differences exist between ordering at the ad hoc and hybrid
Tribunals and ordering at the ICC. However, these differences either stem from the
inclusion of attempt in the ICC Statute or represent a departure by the ICC Statute
from the generally accepted ICL customary principles on ordering. Since states are entitled
to depart from these customary principles when conducting their relations inter partes via
treaty provisions (in so far as they do not violate jus cogens), the provisions on ordering
contained in the ICC Statute should be viewed in this light.
3. It must be stressed at the outset that the jurisprudence is replete with factual findings
where accused were found to have ordered specific acts or omissions related to the
4
See ICTY, Delalić et al., Trial Chamber Judgment, IT-96-21-T, 16 November 1998, para. 326; ICTY, Aleksovski,
Trial Chamber Judgment, IT-95-14/1-T, 25 June 1999, paras. 59–61; ICTY, Kordić and Čerkez, Trial Chamber
Judgment, IT-95-14/2-T, 26 February 2001, para. 385.
5
This is to be contrasted to the approach taken by one ECCC Trial Chamber judgment where, in addition to
modern international criminal law jurisprudence, it cited multiple World War II-era ordering cases in
articulating the elements of ordering: ECCC, Nuon and Khieu, 002/01 Trial Chamber Judgment, 002/19-09-
2007/ECCC/TC/E313, 7 August 2014, paras. 701–702.
6
See ICTR, Akayesu, Trial Chamber Judgment, ICTR-96-4-T, 2 September 1998, para. 483; ICTR, Rutaganda,
Trial Chamber Judgment, ICTR-96-3-T, 6 December 1999, para. 39; ICTR, Musema, Trial Chamber Judgment,
ICTR-96-13-A, 27 January 2000, para. 121; Kordić and Čerkez Trial Judgment, supra n. 4, para. 388; ICTY,
Blaškić, Trial Chamber Judgment, IT-95-14-T, 3 March 2000, paras. 278, 281; ICTR, Bagilishema, Trial
Chamber Judgment, ICTR-95-1A-T, 7 June 2001, para. 30; ICTY, Krstić, Trial Chamber Judgment, IT-98-33-
T, 2 August 2001, para. 601; ICTR, Kamuhanda, Trial Chamber Judgment, ICTR-99-54A-T, 22 January 2003,
paras. 594, 612; ICTR, Semanza, Trial Chamber Judgment, ICTR-97-20-T, 15 May 2003, para. 382; ICTY, Stakić,
Trial Chamber Judgment, IT-97-24-T, 31 July 2003, para. 445; ICTR, Kajelijeli, Trial Chamber Judgment, ICTR-
98-44A-T, 1 December 2003, para. 763; ICTY, Galić, Trial Chamber Judgment, IT-98-29-T, 5 December 2003,
para. 168.
7
See Blaškić Trial Judgment, supra n. 6, para. 282, fn. 508 (relying on United States of America v. von Leeb et al.
(‘High Command Case’), Case No. 12, Military Tribunal V (Nuremberg), 27–28 October 1948, in TWC (Green
Series), Vol. XI, at 511).
8
See ICTY, Blaškić, Appeals Chamber Judgment, IT-95-14-A, 29 July 2004, paras. 33–42; G. Boas, J. L. Bischoff
and N. L. Reid, International Criminal Law Practitioner Library – Volume I: Forms of Responsibility in
International Criminal Law (Cambridge: Cambridge University Press, 2007), at 349–350.

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 286 m a n u el j . v en t u r a

commission of crimes, particularly when the accused had a connection with, or formed
part of, a military chain of command. However, such findings do not mean, in and of
themselves, that ordering as a mode of liability will necessarily be engaged. Rather, such
factual findings are considered in light of several factors such as the mode(s) of liability
pleaded by the prosecution, the mode of liability subsequently adopted by the trial
chamber (where the prosecution pleads multiple modes) and the totality of the facts.
In other words, a factual finding that an order was given by the accused that resulted in the
commission of crimes does not automatically guarantee that these actions will be legally
qualified as ordering as a mode of liability when assessing individual criminal responsi-
bility. For example, depending on the circumstances of the case, it can result in an analysis
and conviction based on aiding and abetting or co-perpetration.9
4. To explore ordering further, this chapter is divided into five substantive sections in
addition to the present introduction: the meaning and application of ordering (including
its definition, related concepts and scope of application) (Section 9.2); the constitutive
elements of ordering (including controversial and uncontroversial elements and an overall
assessment) (Section 9.3); the status of ordering under ICL (Section 9.4); evidentiary
factors in relation to ordering’s constitutive elements (Section 9.5); and general conclusive
principles of ordering as a mode of liability drawn from the preceding discussions
(Section 9.6).

9.2 Meaning and Application

9.2.1 Definition and Related Concepts
5. After identifying the definition of ordering and determining its status under ICL
(Subsection (a)), ordering will be distinguished from JCE,10 indirect perpetration,11
instigation,12 aiding and abetting,13 direct and public incitement14 and superior/com-
mand responsibility15 (Subsection (b)).

(a) Definition
6. Ordering, like every mode of liability in ICL, is comprised of distinct material (actus
reus) and mental (mens rea) elements. Perhaps the most distinguishing feature of ordering

9
See ICTY, Mrkšić et al., Trial Chamber Judgment, IT-95-13/1-T, 27 September 2007, paras. 609–613, 615–632
(where Mrkšić was found to have aided and abetted (not ordered) the commission of crimes when he ordered
the withdrawal of soldiers guarding detainees; Mrkšić’s conviction was upheld on appeal: ICTY, Mrkšić and
Šljivančanin, Appeals Chamber Judgment, IT-95-13/1-A, 5 May 2009); ICC, Bemba et al., Appeals Chamber
Judgment, ICC-01/05-01/13-2275-Red, 8 March 2018, paras. 783–784 (where Bemba was found – in a co-
perpetration context – to have made an essential contribution to the commission of offences by, inter alia,
ordering ‘remedial measures’ to protect and conceal criminal conduct). See also ICTY, Šainović et al., Appeals
Chamber Judgment, IT-05-87-A, 23 January 2014, para. 954: ‘the Trial Chamber was under no obligation to
provide a legal definition of the [term] “order” . . . as [this term was] used to describe factual findings rather
than to provide a legal qualification of Šainović’s acts’.
10
See Ch. 6 of the Study.
11
See Ch. 3 of the Study.
12
See Ch. 8 of the Study.
13
See Ch. 7 of the Study.
14
See Ch. 14 of the Study.
15
See Ch. 15 of the Study.

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 o rde rin g 287

is its actus reus, namely the ‘authority requirement’, which requires that a ‘person in
a position of authority instructs another person to commit an offence’.16 Accordingly,
a relationship of authority must exist between the person who issues the order and those
who ultimately receive it. Notably, this relationship can be of a de jure or de facto nature as
long as it compels a person to commit a crime. A formal superior/subordinate relationship
or a relationship where the superior exercises ‘effective control’ (in the command/superior
responsibility sense) over his/her subordinates is not required.17
7. Additionally, the order must have had a substantial effect on, or constituted
a substantial contribution to, the commission of the crime(s);18 i.e. a crime must have been
committed19 (but at the ICC attempt is sufficient).20 Thus, ordering is not inchoate.
However, a number of cases, when identifying the material (actus reus) element of this
mode of liability, have neglected to mention this substantial effect/contribution
requirement.21 This absence is an error. As was recognized by the very first ICTY case,
in order for individual criminal responsibility to ensue, a causal link must be established
16
ICTY, Kordić and Čerkez, Appeals Chamber Judgment, IT-95-14/2-A, 17 December 2004, para. 28; ICTR,
Semanza, Appeals Chamber Judgment, ICTR-97-20-A, 20 May 2005, para. 361; ICTR, Kalimanzira, Appeals
Chamber Judgment, ICTR-05-88-A, 20 October 2010, para. 213; ICTR, Setako, Appeals Chamber Judgment,
ICTR-04-81-A, 28 September 2011, para. 240; ICTR, Bagosora and Nsengiyumva, Appeals Chamber Judgment,
IT-98-41-A, 14 December 2011, para. 277; ICTR, Nzabonimana, Appeals Chamber Judgment, ICTR-98-44D-
A, 29 September 2014, para. 482. See also ICTR, Kamuhanda, Appeals Chamber Judgment, ICTR-99-54A-A,
19 September 2005, para. 75; ICTY, Krajišnik, Appeals Chamber Judgment, IT-00-39-A, 17 March 2009, para.
662; ICTR, Hategekimana, Appeals Chamber Judgment, ICTR-00-55B-A, 8 May 2012, para. 67; ICC,
Mudacumura, Arrest Warrant Decision, ICC-01/04-01/12-1-Red, 13 July 2012, para. 63; ICC, Ntaganda,
Confirmation of Charges Decision, ICC-01/04-02/06-309, 9 June 2014, para. 145; ICTY, Karadžić, Trial
Chamber Judgment, IT-95-5/18-T, 24 March 2016, para. 573.
17
Kordić and Čerkez Appeal Judgment, supra n. 16, para. 28; Semanza Appeal Judgment, supra n. 16, paras.
361–363; Kamuhanda Appeal Judgment, supra n. 16, para. 75; ICTR, Gacumbitsi, Appeals Chamber Judgment,
ICTR-2001-64-A, 7 July 2006, para. 182; ICTY, Galić, Appeals Chamber Judgment, IT-98-29-A,
30 November 2006, para. 176; ICTR, Nahimana et al., Appeals Chamber Judgment, ICTR-99-52-A,
28 November 2007, para. 481, fn. 1162; ICTR, Karera, Appeals Chamber Judgment, ICTR-01-74-A,
2 February 2009, para. 211; SCSL, Sesay et al., Appeals Chamber Judgment, SCSL-04-15-A, 26 October 2009,
para. 164; ICTY, D. Milošević, Appeals Chamber Judgment, IT-98-29/1-A, 12 November 2009, para. 290; ICTY,
Boškoski and Tarčulovski, Appeals Chamber Judgment, IT-04-82-A, 19 May 2010, para. 164; Setako Appeal
Judgment, supra n. 16, para. 240; Karadžić Trial Judgment, supra n. 16, para. 573; ICTY, Mladić, Trial Chamber
Judgment, IT-09-92-T, 22 November 2017, para. 3563. Contrary to Schabas, the case law is not divided on this
matter: Schabas, supra n. 1, at 574;
18
Aleksovski Trial Judgment, supra n. 4, para. 61; Bagilishema Trial Judgment, supra n. 6, para. 30; Kajelijeli Trial
Judgment, supra n. 6, para. 759; Nahimana et al. Appeal Judgment, supra n. 17, para. 492; ICTY, Haradinaj
et al., Trial Chamber Judgment, IT-04-84-T, 3 April 2008, para. 141; ICTY, Milutinović et al., Trial Chamber
Judgment, IT-05-87-T, 26 February 2009, Vol. I, para. 88; Boškoski and Tarčulovski Appeal Judgment, supra
n. 17, para. 160; ECCC, Kaing, Trial Chamber Judgment, 001/18-07-2007/ECCC/TC/E188, 26 July 2010, para.
527; ICTY, Gotovina et al., Trial Chamber Judgment, IT-06-90-T, 15 April 2011, para. 1956; ICTY, Stanišić and
Simatović, Trial Chamber Judgment, IT-03-69-T, 30 May 2013, Vol. I, para. 1261; SCSL, Taylor, Appeals
Chamber Judgment, SCSL-03-01-A, 26 September 2013, paras. 368, 589, 592; Nuon and Khieu 002/01 Trial
Judgment, supra n. 5, para. 702; Mladić Trial Judgment, supra n. 17, para. 3563. Note that although some of
these judgments use the phrase ‘substantial effect’ and others ‘substantial contribution’ (or derived forms of
these two phrases), there is no substantive difference between them; they are synonymous. Thus, this chapter
will use these two phrases interchangeably.
19
See infra para. 25, fn. 73.
20
See infra para. 37, fn. 87.
21
See for example Galić Trial Judgment, supra n. 6, para. 168; ICTY, Brđanin, Trial Chamber Judgment, IT-99-
36-T, 1 September 2004, para. 270; Kordić and Čerkez Appeal Judgment, supra n. 16, para. 28; Semanza Appeal
Judgment, supra n. 16, paras. 360–362; ICTY, Limaj et al., Trial Chamber Judgment, IT-03-66-T,

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 288 manuel j. ventura

between the actions of the accused and the relevant crime.22 Other cases, while noting that
a causal link is necessary, have failed to state that this causal link is found in the substantial
effect/contribution requirement.23
8. The mens rea for ordering is satisfied when the person intends the commission of the
crime(s) pursuant to his/her order (i.e. direct intent).24 The jurisprudence has also
recognized indirect intent via a lower mens rea standard: when the accused gives an
order ‘with the awareness of the substantial likelihood that a crime will be committed in
the execution of that order’.25 In such circumstances, the accused is regarded as having
accepted the crime. Contrary to some judgments26 and commentators,27 these two mens
rea requirements are not cumulative but alternatives.

(b) Related concepts

9. While the actus reus of JCE can consist of, inter alia, orders issued by the accused,28
there are important differences between JCE and ordering. First, JCE gives rise to criminal
liability as a principal; ordering does not. Second, while JCE ‘requires a plurality of persons
sharing a common criminal purpose’, ordering does not.29 Third, ‘whereas JCE requires
that the accused intended to participate and contribute to such a [common criminal]
purpose, an accused may be found responsible for . . . ordering a crime if he intended that

30 November 2005, para. 515; ICTR, Ntagerura et al., Appeals Chamber Judgment, ICTR-99-46-A, 7 July 2006,
para. 365; ICTY, Martić, Trial Chamber Judgment, IT-95-11-T, 12 June 2007, para. 441; SCSL, Brima et al.,
Trial Chamber Judgment, SCSL-2004-16-T, 20 June 2007, para. 772; Mrkšić et al. Trial Judgment, supra n. 9,
para. 550; Nahimana et al. Appeal Judgment, supra n. 17, para. 481; ICTY, D. Milošević, Trial Chamber
Judgment, IT-98-29/1-T, 12 December 2007, para. 957; ICTY, Boškoski and Tarčulovski, Trial Chamber
Judgment, IT-04-82-T, 10 July 2008, para. 400; Karera Appeal Judgment, supra n. 17, para. 211; Sesay et al.
Appeal Judgment, supra n. 17, paras. 164, 512; ICTY, Đorđević, Trial Chamber Judgment, IT-05-87/1-T,
23 February 2011, para. 1871; Bagosora and Nsengiyumva Appeal Judgment, supra n. 16, para. 277.
22
See Tadić Trial Judgment, supra n. 3, para. 674: ‘the prosecution must prove that there was participation in that
the conduct of the accused contributed to the commission of the illegal act’.
23
See ICTY, Strugar, Trial Chamber Judgment, Case IT-01-42-T, 31 January 2005, para. 332; SCSL, Fofana and
Kondewa, Trial Chamber Judgment, SCSL-04-14-T 2 August 2007, para. 225; SCSL, Sesay et al., Trial Chamber
Judgment, SCSL-04-15-T, 2 March 2009, para. 273.
24
Bagilishema Trial Judgment, supra n. 6, para. 31; Kordić and Čerkez Appeal Judgment, supra n. 16, para. 29;
Strugar Trial Judgment, supra n. 23, para. 333; Limaj et al. Trial Judgment, supra n. 21, para. 515; Ntagerura
et al. Appeal Judgment, supra n. 21, para. 365; Boškoski and Tarčulovski Appeal Judgment, supra n. 17, para. 68;
Taylor Appeal Judgment, supra n. 18, para. 589; Karadžić Trial Judgment, supra n. 16, para. 573; Mladić Trial
Judgment, supra n. 17, para. 3563.
25
Blaškić Appeal Judgment, supra n. 8, paras. 42, 345, 428, 468, 481, 517, 543, 600, 645; Kordić and Čerkez Appeal
Judgment, supra n. 16, para. 30; Ntagerura et al. Appeal Judgment, supra n. 21, fn. 733; Nahimana et al. Appeal
Judgment, supra n. 17, para. 481; Bagosora and Nsengiyumva Appeal Judgment, supra n. 16, fn. 642. See also
Galić Appeal Judgment, supra n. 17, paras. 152, 157; ICTY, Martić, Appeals Chamber Judgment, IT-95-11-A,
8 October 2008, paras. 221–223; Karera Appeal Judgment, supra n. 17, para. 211; Krajišnik Appeal Judgment,
supra n. 16, para. 662; ICTR, Renzaho, Appeals Chamber Judgment, ICTR-97-31-A, 1 April 2011, para. 315;
Boškoski and Tarčulovski Appeal Judgment, supra n. 17, para. 68; Taylor Appeal Judgment, supra n. 18, fn.
1365; Karadžić Trial Judgment, supra n. 16, para. 573; Mladić Trial Judgment, supra n. 17, para. 3563.
26
Some judgments have mistakenly used the word ‘and’ instead of ‘or’ when separating these two mens rea
requirements. See Stakić Trial Judgment, supra n. 6, para. 455; Brđanin Trial Judgment, supra n. 21, para. 270.
27
See R. O’Keefe, International Criminal Law (Oxford: Oxford University Press, 2015), at 188 (who appears to
assert that the mens rea is cumulative: ‘[t]he mens rea for responsibility on the basis of ordering is twofold’).
28
See for example ICTY, Prlić et al., Trial Chamber Judgment, IT-04-74-T, 29 May 2013, Vol. IV, paras. 815, 818;
Karadžić Trial Judgment, supra n. 16, paras. 5817–5821, 5979, 5981, 5986–5992.
29
Krajišnik Appeal Judgment, supra n. 16, para. 662.

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 orde rin g 289

the crime be committed or acted with the awareness of the substantial likelihood that
a crime would be committed’.30 Lastly, the actus reus requirement for JCE and ordering
differs. Whereas the former requires the acts to constitute a ‘significant contribution’ to
the JCE (and, by implication, a significant contribution to the relevant crime), the latter
requires the acts to constitute a ‘substantial contribution’ to the crime, which is a higher
standard.31
10. Ordering also needs to be differentiated from indirect perpetration (and the ‘indir-
ect’ component of indirect co-perpetration) under the ICC’s jurisprudence (i.e. Article
25(3)(a) of the ICC Statute, which concerns commission ‘through another person’). First,
a requirement of automatic compliance with orders features prominently in the ICC’s
jurisprudence for either indirect perpetration or indirect co-perpetration to be estab-
lished, whereas ordering does not require such a level of control over the perpetrators (see
detailed discussion below in Subsection (d)). Second, the accused must exert control over
an organization that is based on a hierarchical apparatus of power,32 which is not required
to establish ordering as a mode of liability. In addition, as the ICC explained, ‘[a]n
authority who issues an order within such an organization . . . assumes a different kind
of responsibility than in ordinary cases of criminal ordering’, namely the responsibility of
a principal and not an accessory.33
11. Ordering and instigation, on the other hand, share many similarities and are
practically identical. However, ordering is ‘subject to the additional requirement that
the person ordering the commission of a crime have authority over the person physically
perpetrating the offence’.34 In other words, when instigation’s requisite elements are
satisfied, the elements of ordering are simultaneously satisfied. All that is left to determine
is whether the facts satisfying ordering are simultaneously satisfied with the exception of

30
Ibid., para. 662, para. 662 (emphasis added). It is worth noting, however, that the mens rea for JCE III is lower
than that described here for JCE (I). Nonetheless, JCE III requires, as a prerequisite, the existence of a JCE (I)
where the accused intended to participate and contribute to a common criminal purpose.
31
See ICTY, Gotovina and Markač, Appeals Chamber Judgment, IT-06-90-A, 16 November 2012, para. 149 (in
the context of JCE and aiding and abetting). ICTY, Prlić et al., Appeals Chamber Judgment, IT-04-74-A,
29 November 2017, para. 2768 (in the context of JCE and aiding and abetting). Note that the requirement of
a ‘substantial contribution/effect’ under aiding and abetting is the same as a ‘substantial contribution/effect’
under ordering: Taylor Appeal Judgment, supra n. 18, para. 368, fn. 1137; Nahimana et al. Appeal Judgment,
supra n. 17, para. 492.
32
See ICC, Katanga and Ngudjolo, Confirmation of Charges Decision, ICC-01/04-01/07-717, 30 September 2008,
paras. 500–518; ICC, Ruto et al., Confirmation of Charges Decision, ICC-01/09-01/11-373, 23 January 2012,
para. 292; ICC, Muthaura et al., Confirmation of Charges Decision, ICC-01/09-02/11-382-Red,
23 January 2012, para. 297; ICC, Katanga, Trial Chamber Judgment, ICC-01/04-01/07-3436-tENG,
7 March 2014, paras. 1407–1412. See also ICC, Al-Bashir, Arrest Warrant Decision, ICC-02/05-01/09-3,
4 March 2009, para. 211; ICC, M. Gaddafi et al., Arrest Warrant Decision, ICC-01/11-01/11-1, 27 June 2011,
para. 69. While this form of indirect commission is not ‘the one and only legal solution that allows the
provisions of Article 25(3)(a) concerning commission by an intermediary to be construed’, it is the one that has
been most prominently employed so far at the ICC: Katanga Trial Judgment, supra n. 32, para. 1406.
33
Katanga and Ngudjolo Confirmation of Charges Decision, supra n. 32, para. 517.
34
Strugar Trial Judgment, supra n. 23, para. 332. See also Mrkšić et al. Trial Judgment, supra n. 9, para. 550;
Boškoski and Tarčulovski Trial Judgment, supra n. 21, paras. 562–400; Kaing Trial Judgment, supra n. 18, para.
522; Đorđević Trial Judgment, supra n. 21, para. 1871; ICC, L. Gbagbo, Confirmation of Charges Decision, ICC-
02/11-01/11-656-Red, 12 June 2014, para. 243; ICC, Blé Goudé, Confirmation of Charges Decision, ICC-02/11-
02/11-186, 11 December 2014, para. 159.

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 290 m a n u el j . v e n t u r a

ordering’s authority requirement.35 A final difference is that ordering, unlike instigating,

cannot be committed via an omission (i.e. omitting to issue an order).36
12. Ordering should also be contrasted with aiding and abetting. Whereas ordering
requires a relationship of authority between the person who issues the order and those
who receive it, aiding and abetting requires no such relationship. Still, it is worth noting
that the presence of a person with such authority at or near the scene of a crime may
amount to tacit encouragement or approval under aiding and abetting.37 In addition, ICL
recognizes aiding and abetting by omission as long as the accused had a legal duty to act.38
As aforementioned, ordering cannot be established on the basis of an accused’s failure to
issue an order (although ordering inaction can, since it amounts to positive action on the
part of the accused). In addition, the actus reus of aiding and abetting can occur during or
after the commission of the crime,39 whereas the actus reus of ordering must necessarily
precede the commission of the crime40 since it is the accused’s position of authority which
compels the commission of the crime(s).
13. Furthermore, ordering and direct and public incitement should be distinguished.
The latter is an inchoate offence in ICL that applies only to genocide and is completed as
soon as the discourse in question is is uttered, published or otherwise disseminated.41
Ordering, on the other hand, is a mode of liability that can apply to all international crimes
equally and requires the relevant crime to be fully realized (or at least attempted at the
ICC). As a corollary, in the case of direct and public incitement to commit genocide, it is
irrelevant whether the inciting acts had a substantial effect on the commission of genocide;
the inchoate offence is punishable regardless of whether genocide is committed as
a result.42 Additionally, direct and public incitement to commit genocide, unlike ordering,

35
See for example ICTR, Nchamihigo, Appeals Chamber Judgment, ICTR-2001-63-A, 18 March 2010, para. 188.
36
ICTY, Haradinaj et al., Trial Chamber (Retrial) Judgment, IT-04-84bis-T, 29 November 2012, para. 624.
37
ICTR, Kayishema and Ruzindana, Appeals Chamber Judgment, ICTR-95-1-A, 1 June 2001, paras. 201–202;
ICTY, Brđanin, Appeals Chamber Judgment, IT-99-36-A, 3 April 2007, paras. 273, 277; ICTY, Orić, Appeals
Chamber Judgment, IT-03-68-A, 3 July 2008, para. 42; ICTR, Muvunyi, Appeals Chamber Judgment, ICTR-
2000-55A-A, 29 August 2008, para. 80; Kalimanzira Appeal Judgment, supra n. 16, para. 74; ICTR,
Ndahimana, Appeals Chamber Judgment, ICTR-01-68-A, Appeal Judgment, 16 December 2013, para. 147;
Šainović et al. Appeal Judgment, supra n. 9, para. 1687; MICT, Ngirabatware, Appeals Chamber Judgment,
MICT-12-29-A, 18 December 2014, para. 150; ICC, Bemba et al., Trial Chamber Judgment, ICC-01/05-01/13-
1989-Red, 19 October 2016, para. 89.
38
Ntagerura et al. Appeal Judgment, supra n. 21, para. 370; Nahimana et al. Appeal Judgment, supra n. 17, para.
482; Orić Appeal Judgment, supra n. 37, para. 43; Mrkšić and Šljivančanin Appeal Judgment, supra n. 9, para.
134; ICTR, Ntawukulilyayo, Appeals Chamber Judgment, ICTR-05-82-A, 14 December 2011, para. 214;
Gotovina and Markač Appeal Judgment, supra n. 31, para. 127; Šainović et al. Appeal Judgment, supra n. 9,
para. 1677.
39
Blaškić Appeal Judgment, supra n. 8, para. 48; Ntagerura et al. Appeal Judgment, supra n. 21, para. 372; ICTY,
B. Simić, Appeals Chamber Judgment, IT-95-9-A, 28 November 2006, para. 85; ICTR, Nyiramasuhuko et al.,
Appeals Chamber Judgment, ICTR-98-42-A, 14 December 2015, para. 3332.
40
Nahimana et al. Appeal Judgment, supra n. 17, para. 482.
41
Supreme Court of Canada, Mugesera v. Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 100,
28 June 2005, paras. 84–85; Nahimana et al. Appeal Judgment, supra n. 17, paras. 678, 723; Nzabonimana
Appeal Judgment, supra n. 16, fn. 82, para. 234; Ngirabatware Appeal Judgment, supra n. 37, para. 52;
Nyiramasuhuko et al. Appeal Judgment, supra n. 39, paras. 2677, 3345.
42
See Nyiramasuhuko et al. Appeal Judgment, supra n. 39, para. 2781. See also Nzabonimana Appeal Judgment,
supra n. 16, para. 234; Nahimana et al. Appeal Judgment, supra n. 17, para. 678 (in the context of instigation).
Note that the requirement of a ‘substantial contribution/effect’ under instigating is the same as a ‘substantial

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does not require a relationship of authority between the person who incites and those who
ultimately receive the inciteful discourse. Finally, incitement to commit genocide also
requires that the incitement itself be both public and direct; these are elements of the
offence. Ordering is not limited in such a fashion – it has no such requirements.
14. Lastly, ordering should not be confused with command/superior responsibility.
As the ICTR has explained, command/superior responsibility requires the accused to
possess ‘“effective control” over his or her subordinates to the extent that he [or she] can
prevent them from committing crimes or punish them after they committed the crimes.
To be held responsible . . . for ordering a crime, on the contrary, it is sufficient that the
accused have authority over the perpetrator of the crime’.43 In other words, ‘[t]he finding
of authority for the purposes of “ordering” . . . is not synonymous with the presence of
“effective control” for the purposes of [command/superior] responsibility’.44 In addition,
it is important to remember that command/superior responsibility seeks to hold
a commander responsible for his/her omissions (e.g. a failure to prevent or punish crimes
committed by subordinates),45 whereas ordering requires positive action. Ordering cannot
be established on the basis that the accused omitted to give an order.

9.2.2 Scope of Application

15. ICL recognizes that ordering as a mode of liability can be applied to all core
international crimes without distinction. However, it is worth noting that ordering
was not included, as such, in the Charter of the Nuremberg Tribunal, the Charter of
the Tokyo Tribunal, the 1950 Nuremberg Principles or the 1954 ILC Draft Code of
Crimes.46 Rather, it was first explicitly included in Control Council Law No. 10, whereby
persons who were ‘an accessory to the commission of any . . . crime or ordered or abetted
the same’ could be held criminally responsible.47 Ordering’s lack of uniform and explicit
inclusion in these early primary documents, however, does not cast doubt on its
recognition and application at that time. Indeed, numerous individuals were found to
have specifically ordered crimes in post-World War II proceedings at the Nuremberg48

contribution/effect’ under ordering: Taylor Appeal Judgment, supra n. 18, para. 368, fn. 1137; Nahimana et al.
Appeal Judgment, supra n. 17, para. 492.
43
Kamuhanda Appeal Judgment, supra n. 16, para. 75; ICTR, Seromba, Appeals Chamber Judgment, ICTR-2001-
66-A, 12 March 2008, para. 201.
44
Kamuhanda Trial Judgment, supra n. 6, para. 612. See also Gacumbitsi Appeal Judgment, supra n. 17, para. 182;
Seromba Appeal Judgment, supra n. 43, para. 202.
45
See Werle and Jessberger, supra n. 1, at 230; Ambos, Treatise, supra n. 1, at 197; Boas, Bischoff and Reid, supra
n. 8, at 143–144. See also ICTY, Naletilić and Martinović, Appeals Chamber Judgment, IT-98-34-A,
3 May 2006, para. 331: ‘[t]here is no requirement [under command/superior responsibility] that the superior
“order” the commission of the act’.
46
However, ordering was implicitly referenced in all these documents in their respective repudiations of the
defence of superior orders. See Art. 8 IMT Charter; Art. 6 IMTFE Charter; Principle IV Nuremberg Principles
(1950); Art. 4 1954 ILC Draft Code of Crimes.
47
Art. II(2)(b) Control Council Law No. 10 (emphasis added).
48
See United States of America et al. v. Göring et al., International Military Tribunal (Nuremberg),
1 October 1946, in TWC (Blue Series), Vol. I, at 206, 311–314 (defendant Dönitz); 228, 234, 289–290 (defendant
Keitel); 235–236, 289 (defendants Keitel and/or Jodl); 239–240, 281 (defendant Göring); 245 (defendant
Sauckel); 287 (defendant von Ribbentrop); 291–293 (defendant Kaltenbrunner); 296 (defendant Rosenberg);
324 (defendant Jodl); 329 (defendant Seyss-Inquart); 340 (defendant Bormann).

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 292 manuel j. ventura

and the Tokyo49 Tribunals as well as before Control Council Law No. 10 Military
Tribunals.50 However, this case law did not clearly and equivocally articulate the
particular elements of ordering as a mode of liability. Furthermore, ordering the
commission of grave breaches of the Geneva Conventions was expressly included in
the penal sanctions and universal jurisdiction provisions of all four Geneva
Conventions.51
16. After a long hiatus, ordering reappeared in the 1991 ILC Draft Code of Crimes;
ordering was mentioned in the first article of every substantive offence included therein.52
Ordering was also subsequently included in the ICTY Statute,53 ICTR Statute,54 the 1996
ILC Draft Code of Crimes55 and the 1998 ICC Statute.56 Since then, it has been
a consistent feature in the founding documents of various tribunals that apply ICL.57
17. This extended and sustained practice leaves no room for doubt as to the scope of
application for ordering in ICL; it covers all international crimes, including

49
See United States of America et al. v. Araki et al., Judgment, International Military Tribunal (Tokyo),
4 November 1948, in N. Boister and R. Cryer (eds.), Documents on the Tokyo International Military
Tribunal: Charter, Indictment and Judgments (Oxford: Oxford University Press, 2008), at 396 (defendant
Matsui); 542–543, 566 (defendant Tojo); 543 (defendant Hata); 610 (defendant Kimura).
50
See United States of America v. Altstötter et al. (‘The Justice Case’), Case No. 3, Military Tribunal III
(Nuremberg), 3–4 December 1947, in TWC (Green Series), Vol. III, at 1085 (defendant Schlegelberger);
United States of America v. Greifelt et al. (‘The RuSHA Case’), Case No. 8, Military Tribunal I (Nuremberg),
10 March 1948, in TWC (Green Series), Vol. V, at 106 (defendant Cruetz); United States of America v. von Leeb
et al. (‘High Command Case’), supra n. 7, at 614 (defendant Reinhardt); 645 (defendant von Roques); United
States of America v. List et al. (‘Hostage Case’), Case No. 7, Military Tribunal V (Nuremberg), 19 February 1948,
in TWC (Green Series), Vol. XI, at 1277–1279 (defendant Kuntze).
51
See Art. 49 Geneva Convention I (1949); Art. 50 Geneva Convention II (1949); Art. 129 Geneva Convention III
(1949); Art. 146 Geneva Convention IV (1949).
52
See 1991 ILC Draft Code of Crimes, Art. 15(1) (aggression); Art. 16(1) (threat of aggression); Art. 17(1)
(intervention); Art. 18 (colonial domination and other forms of alien domination); Art. 19(1) (genocide); Art.
20(1) (apartheid); Art. 21 (systematic or mass violation of human rights); Art. 22(1) (exceptionally serious war
crimes); Art. 23(1) (recruitment, use, financing and training of mercenaries); Art. 24 (international terrorism);
Art. 25(1) (illicit traffic in narcotic drugs); and Art. 26 (wilful and severe damage to the environment).
However, ordering was not explicitly included in the main article on responsibility and punishment: Art. 3
1991 ILC Draft Code of Crimes.
53
Art. 7(1) ICTY Statute: ‘A person who planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be
individually responsible for the crime.’ See also Art. 2 ICTY Statute (ordering the commission of grave breaches
of the Geneva Conventions (1949)).
54
Art. 6(1) ICTR Statute: ‘A person who planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be
individually responsible for the crime.’ See also Art. 4 ICTR Statute (ordering the commission of serious
violations of common Article 3 of the Geneva Conventions (1949) and Additional Protocol II (1977)).
55
Art. 2(3)(b) 1996 ILC Draft Code of Crimes: ‘An individual shall be responsible for a crime set out in article 17,
18, 19 or 20 if that individual . . . Orders the commission of such a crime which in fact occurs or is attempted.’
56
Art. 25(3)(b) ICC Statute: ‘In accordance with this Statute, a person shall be 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.’
57
See Section 14.3(b) Regulation on Panels with Exclusive Jurisdiction over Serious Criminal Offences (East
Timor Tribunal); Art. 6(1) SCSL Statute (see also Art. 3 SCSL Statute (ordering the commission of serious
violations of common Article 3 of the Geneva Conventions (1949) and Additional Protocol II (1977)); Art. 29
ECCC Law (see also Art. 6 ECCC Law (ordering the commission of grave breaches of the Geneva Conventions
(1949))); Art. 10(2) Statute of the Extraordinary African Chambers; Art. 16(1)(a) Law on Specialist Chambers
and Specialist Prosecutor’s Office (Kosovo Tribunal).

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aggression.58 As this chapter attests, ordering has been widely recognized in the various
primary documents outlined above. Moreover, ICL jurisprudence is also replete with
examples of its practical application to all international crimes – and consequent
convictions thereof – on the basis of ordering.59

9.3 Constitutive Elements

18. As aforementioned, ordering has not received the sort of judicial and/or academic
attention that has resulted in major disagreements, schisms or points of controversy. Its
elements are relatively uncontroversial (Section 9.3.1). Nevertheless, some aspects remain
unclear (Section 9.3.2). Does the actus reus require a direct and substantial effect/con-
tribution? Over whom does authority need to be exercised? Does a crime need to be
committed for ordering liability to ensue? After addressing these questions, the relation-
ship between ordering and commission through another person (indirect perpetration)
will be discussed as well as the ICC’s mens rea for ordering.

9.3.1 Uncontroversial Elements

19. According to international criminal case law, and as outlined earlier, ordering
requires a person in a position of authority to instruct another person to commit an
offence, and this must have had a substantial effect on the commission of the offence
(Subsection (a)). The person must also intend that the crimes be committed pursuant to
his/her order or, in the alternative, be aware of the substantial likelihood of their commis-
sion pursuant to his/her order (Subsection (b)).

(a) Material elements

20. The commonly agreed characteristics of the actus reus component of ordering can be
collated into five groups.
21. First, no formal (de jure) superior–subordinate relationship is required between the
accused and the perpetrators; it is not necessary for there to be ‘effective control’ in the
command/superior responsibility sense.60 It is sufficient for the accused to have possessed
some position of authority that enabled him/her to compel another person to commit the

58
See Art. 25(3bis) ICC Statute (stipulating that all provisions of Article 25 of the ICC Statute – which governs
modes of liability and includes ordering – apply to aggression, subject to aggression’s leadership element).
59
See for example Galić Trial Judgment, supra n. 6, paras. 733–752 (finding the accused guilty of ordering the
crime of terror as a violation of the law or customs of war); Kamuhanda Trial Judgment, supra n. 6, paras.
697–702 (finding the accused guilty of ordering extermination as a crime against humanity); ICTR, Gacumbitsi,
Trial Chamber Judgment, ICTR-2001-64-T, 17 June 2004, paras. 281–284 (finding the accused guilty of
ordering killings as genocide); Boškoski and Tarčulovski Trial Judgment, supra n. 21, paras. 562–577 (finding
the accused guilty of ordering murder, wanton destruction and cruel treatment as violations of the laws or
customs of war).
60
Kordić and Čerkez Appeal Judgment, supra n. 16, para. 28; Semanza Appeal Judgment, supra n. 16, para. 361;
Kamuhanda Appeal Judgment, supra n. 16, para. 75; Gacumbitsi Appeal Judgment, supra n. 17, para. 182; Galić
Appeal Judgment, supra n. 17, para. 176; Nahimana et al. Appeal Judgment, supra n. 17, fn. 1162; Seromba
Appeal Judgment, supra n. 43, paras. 201–202; Boškoski and Tarčulovski Appeal Judgment, supra n. 17, para.
164; Setako Appeal Judgment, supra n. 16, para. 240; Nzabonimana Appeal Judgment, supra n. 16, para. 482.

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 294 m a n u el j . v en t u r a

offence pursuant to the order.61 Accordingly, the authority of the person who imparts the order
may be informal (de facto) or of a purely temporary nature.62
22. Second, the order need not have been given directly to the physical perpetrator(s) by
the accused.63 In the same vein, criminal responsibility can ensue for the passing down,
transmitting64 or reissuing of orders.65 The accused need not be physically present at the
crime scene when the order was given.66
23. Third, the order need not be given in writing or in any one particular form.67
Nevertheless, positive action is required; an accused cannot be held responsible for an
omission (e.g. omitting to order).68 However, a distinction is to be made between omitting
to order and ordering an omission, as the latter can attract criminal liability since it

61
Kordić and Čerkez Appeal Judgment, supra n. 16, para. 28; Semanza Appeal Judgment, supra n. 16, paras. 361–
363; Kamuhanda Appeal Judgment, supra n. 16, para. 75; Gacumbitsi Appeal Judgment, supra n. 17, para. 182;
Galić Appeal Judgment, supra n. 17, para. 176; Nahimana et al. Appeal Judgment, supra n. 17, para. 481, fn.
1162; Karera Appeal Judgment, supra n. 17, para. 211; Sesay et al. Appeal Judgment, supra n. 17, para. 164;
D. Milošević Appeal Judgment, supra n. 17, para. 290; Boškoski and Tarčulovski Appeal Judgment, supra n. 17,
para. 164; Setako Appeal Judgment, supra n. 16, para. 240; Nzabonimana Appeal Judgment, supra n. 16, para.
482; Nyiramasuhuko et al. Appeal Judgment, supra n. 39, para. 976; Karadžić Trial Judgment, supra n. 16,
para. 573.
62
Semanza Appeal Judgment, supra n. 16, para. 363; Sesay et al. Trial Judgment, supra n. 23, para. 273;
D. Milošević Appeal Judgment, supra n. 17, para. 290; Setako Appeal Judgment, supra n. 16, para. 240; SCSL,
Taylor, Trial Chamber Judgment, SCSL-03-01-T, 18 May 2012, para. 475; Nzabonimana Appeal Judgment,
supra n. 16, para. 482; Karadžić Trial Judgment, supra n. 16, para. 573.
63
Blaškić Trial Judgment, supra n. 6, para. 282, fn. 508 (relying on United States of America v. von Leeb
et al. (‘High Command Case’), supra n. 7); Kordić and Čerkez Trial Judgment, supra n. 4, para. 388;
ICTY, Naletilić and Martinović, Trial Chamber Judgment, IT-98-34-T, 31 March 2003, para. 61; Brđanin
Trial Judgment, supra n. 21, para. 267; Brima et al. Trial Judgment, supra n. 21, para. 772; ICTY,
Popović et al., Trial Chamber Judgment, IT-05-88-T, 10 June 2010, Vol. I, para. 1012; Taylor Trial
Judgment, supra n. 62, para. 476; Mudacumura, Arrest Warrant Decision, supra n. 16, para. 63; ICTY,
Tolimir, Trial Chamber Judgment, IT-05-88/2-T, 12 December 2012, para. 905; Karadžić Trial Judgment,
supra n. 16, para. 573.
64
Note that ‘[t]he transmittal through the chain of command constitutes an implementation of an order’, but
‘[t]he mere intermediate administrative function of transmitting an order directed by a superior authority to
subordinate units, however, is not considered to amount to such implementation by the commander through
whose headquarters such orders pass’: United States of America v. von Leeb et al. (‘High Command Case’), supra
n. 7, at 510.
65
Brima et al. Trial Judgment, supra n. 21, paras. 774, 2059; Milutinović et al. Trial Judgment, supra n. 18, Vol. I,
para. 87; Kaing Trial Judgment, supra n. 18, para. 527; Đorđević Trial Judgment, supra n. 21, para. 1871; Taylor
Trial Judgment, supra n. 62, para. 476; Haradinaj et al. Retrial Judgment, supra n. 36, para. 624. See also United
States of America v. von Leeb et al. (‘High Command Case’), supra n. 7, at 510, 525, 560–561, 617; United States
of America v. von Weizsäcker et al. (‘Ministries Case’), Case No. 11, Military Tribunal IV (Nuremberg), 11–
13 April 1949, TWC (Green Series), Vol. XIV, at 462–463; ICTY, Kupreškić et al., Trial Chamber Judgment, IT-
95-16-T, 14 January 2000, para. 862.
66
D. Milošević Appeal Judgment, supra n. 17, para. 290; Boškoski and Tarčulovski Appeal Judgment, supra n. 17,
paras. 125, 132, fns 347, 442; Haradinaj et al. Retrial Judgment, supra n. 36, para. 624.
67
Strugar Trial Judgment, supra n. 23, para. 331; Kamuhanda Appeal Judgment, supra n. 16, para. 76; Milutinović
et al. Trial Judgment, supra n. 18, Vol. I, para. 88; Boškoski and Tarčulovski Appeal Judgment, supra n. 17, para.
160; Kaing Trial Judgment, supra n. 18, para. 527; ICTY, Stanišić and Župljanin, Trial Chamber Judgment, IT-
08-91-T, 27 March 2013, Vol. I, para. 98; Prlić et al. Trial Judgment, supra n. 28, Vol. I, para. 231; Karadžić Trial
Judgment, supra n. 16, para. 573.
68
Galić Appeal Judgment, supra n. 17, para. 176; Sesay et al. Appeal Judgment, supra n. 17, para. 164. See also
D. Milošević Appeal Judgment, supra n. 17, para. 267; Bagosora and Nsengiyumva Appeal Judgment, supra n. 16,
para. 277.

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denotes positive action on the part of the accused.69 Moreover, the act of ordering can be
proved by taking into account omissions on the part of the accused.70
24. Fourth, the order in question need not be criminal on its face or inherently illegal.71
However, where the order is illegal, then World War II-era jurisprudence suggests that the
person who physically drafts the order (separate from the person with authority who issued it)
can incur criminal responsibility where he/she exercises personal initiative in its drafting
rather than merely transcribing the orders or the general directives of a superior.72
25. Fifth, a crime must be fully executed/completed for ordering liability to arise.73
However, it is unnecessary to show that the crime would not have been committed ‘but
for’ the issuing of the order concerned.74

(b) Mental elements

26. There are two commonly agreed characteristics of the mens rea component of
ordering. First, only the mens rea of the person who imparts the order or passes it

69
Blaškić Appeal Judgment, supra n. 8, paras. 42, 468; Kordić and Čerkez Appeal Judgment, supra n. 16, para. 30;
Galić Appeal Judgment, supra n. 17, para. 176, fns 507–508; Nahimana et al. Appeal Judgment, supra n. 17,
para. 481; D. Milošević Appeal Judgment, supra n. 17, para. 292; Taylor Appeal Judgment, supra n. 18, para.
589, fn. 1238; Nzabonimana Appeal Judgment, supra n. 16, para. 482; Nyiramasuhuko et al. Appeal Judgment,
supra n. 39, para. 976, fn. 4448; Karadžić Trial Judgment, supra n. 16, para. 573.
70
Galić Appeal Judgment, supra n. 17, para. 177 (‘[t]he Trial Chamber inferred from the evidence . . . which
included, inter alia, acts and omissions of the accused, that Galić had given the order to commit the crimes’.)
71
Blaškić Trial Judgment, supra n. 6, para. 282. See also ordering’s alternate mens rea: an awareness of the
substantial likelihood that a crime will be committed in the execution of an order (implying that the order itself
need not be illegal on its face). But see World War II case law which suggests the requirement of an illegal order
or that the order be capable of being applied in a criminal manner: United States of America v. von Leeb et al.
(‘High Command Case’), supra n. 7, at, at 510–512, 515, 520, 524–525, 527, 560–561. See also K. J. Heller,
The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford: Oxford University
Press, 2011), at 254–255.
72
United States of America v. von Leeb et al. (‘High Command Case’), supra n. 7, at, at 513, 515, 651–653, 665–666,
669, 674, 683, 692–695; United States of America v. List et al. (‘Hostage Case’), supra n. 50, at 1287–1288. See
also Heller, supra n. 71, at 256.
73
Brđanin Trial Judgment, supra 21, para. 267; Martić Trial Judgment, supra n. 21, para. 441; Nahimana Appeal
Judgment, supra n. 17, para. 481; Karera Appeal Judgment, supra n. 17, para. 211; Popović et al. Trial Judgment,
supra n. 63, Vol. I, para. 1013; Kaing Trial Judgment, supra n. 18, para. 527; Tolimir Trial Judgment, supra n. 63,
para. 906; Stanišić and Župljanin Trial Judgment, supra n. 67, Vol. I, para. 98; Stanišić and Simatović Trial
Judgment, supra n. 18, Vol. I, paras. 1261, 1263; Nuon and Khieu 002/01 Trial Judgment, supra n. 5, para. 702;
Karadžić Trial Judgment, supra n. 16, para. 573; Mladić Trial Judgment, supra n. 17, para. 3563. See also United
States of America v. Greifelt et al. (‘The RuSHA Case’), supra n. 50, at 147; United States of America v. Ohlendorf
et al. (‘Einsatzgruppen Case’), Case No. 9, Military Tribunal II (Nuremberg), 8–9 April 1948, in TWC (Green
Series), Vol. IV, at 486; United States of America v. von Leeb et al. (‘High Command Case’), supra n. 7, at
615–616. See also cases which stipulate that the order must have effected ‘the commission of the illegal act’
(emphasis added): Kamuhanda Appeal Judgment, supra n. 16, para. 75; Seromba Appeal Judgment, supra n. 43,
para. 201; Renzaho Appeal Judgment, supra n. 25, para. 315; Setako Appeal Judgment, supra n. 16, para. 240;
Hategekimana Appeal Judgment, supra n. 16, para. 67; Haradinaj et al. Retrial Judgment, supra n. 36, para. 624;
Prlić et al. Trial Judgment, supra n. 28, Vol. I, para. 232; Nyiramasuhuko et al. Appeal Judgment, supra n. 39,
para. 976. But see United States of America v. List et al. (‘Hostage Case’), supra n. 50, at 1294 (holding that even if
no captured commissars were shot by troops under the accused’s command, this ‘d[id] not free him of the
crime of knowingly and intentionally passing on a criminal order’).
74
Strugar Trial Judgment, supra n. 23, para. 332; Milutinović et al. Trial Judgment, supra n. 18, Vol. I, para. 88;
Popović et al. Trial Judgment, supra n. 63, Vol. I, para. 1013; Taylor Trial Judgment, supra n. 62, para. 477;
Tolimir Trial Judgment, supra n. 63, para. 906; Prlić et al. Trial Judgment, supra n. 28, Vol. I, para. 232; Karadžić
Trial Judgment, supra n. 16, para. 573.

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down – not the mens rea of the physical perpetrators – is relevant; the accused need not
share the intent of the physical perpetrators.75 Second, when an accused orders an act or
omission with the awareness of the substantial likelihood that a crime will be committed in
the execution of the order, then the accused is regarded as having accepted the crime.76

9.3.2 Open Questions

27. As aforementioned, the constitutive elements of ordering as a mode of liability have
not been the subject of controversy or sustained academic debate. However, and despite
the general consensus on its elements, there are some open questions that arise from the
jurisprudence which have the potential to cause discrepancies in the future application of
this mode. In particular, these concern the requirement of a substantial effect/contribu-
tion vis-à-vis the actus reus (Subsection (a)); the exercise of authority by the person who
issues the order (Subsection (b)); the need for the commission of a crime for ordering
liability to ensue (Subsection (c)); the overlap between ordering and indirect perpetration
(Subection (d)); and the mens rea for ordering at the ICC (Subsection (e)).

(a) Nature of the effect on contribution to the crime

28. A close reading of ordering jurisprudence reveals a subtle difference in the way the
actus reus component of this mode of liability has been expressed. While a number of
judgments have held that the actions of the accused must have had a substantial effect on
or substantially contributed to the commission of crimes,77 others appear to add an
additional requirement: that the acts must have a ‘direct and substantial effect on[/sub-
stantially contributed to] the commission of the illegal act’.78 The inclusion of ‘direct’ may
seem like a minor difference at first glance. However, if it is considered as a substantive
element, then it can have a significant impact on the consideration of the evidence and,
ultimately, the determination of an accused’s guilt or innocence under ordering as a mode
of liability. For example, if the evidence shows that an accused’s order did not have a direct
effect on the crime(s), then it becomes irrelevant whether the order had a substantial effect
on their commission.
75
Blaškić Trial Judgment, supra n. 6, para. 282; Kordić and Čerkez Trial Judgment, supra n. 4, para. 388.
76
Blaškić Appeal Judgment, supra n. 8, paras, 42, 345, 428, 468, 481, 517, 543, 600, 645, fn. 974; Kordić and Čerkez
Appeal Judgment, supra n. 16, para. 30; D. Milošević Trial Judgment, supra n. 21, para. 958; Martić Appeal
Judgment, supra n. 25, paras. 221, 223; Taylor Appeal Judgment, supra n. 18, fn. 1365; Nyiramasuhuko et al.
Appeal Judgment, supra n. 39, para. 976, fn. 4448.
77
Supra para. 7, fn. 18.
78
Kamuhanda Appeal Judgment, supra n. 16, para. 75; Seromba Appeal Judgment, supra n. 43, para. 201; Popović
et al. Trial Judgment, supra n. 63, Vol. I, para. 1013; ICTR, Munyakazi, Trial Chamber Judgment, ICTR-97-
36A-T, 5 July 2010, para. 432; Renzaho Appeal Judgment, supra n. 25, para. 315; ICTR, Nyiramasuhuko et al.,
Trial Chamber Judgment, ICTR-98-42-T, 24 June 2011, para. 5593; Setako Appeal Judgment, supra n. 16, para.
240; ICTR, Karemera and Ngirumpatse, Trial Chamber Judgment, ICTR-98-44-T, 2 February 2012, para. 1428;
Hategekimana Appeal Judgment, supra n. 16, para. 67; ICTR, Nzabonimana, Trial Chamber Judgment, ICTR-
98-44D-T, 31 May 2012, para. 1695; Haradinaj et al. Retrial Judgment, supra n. 36, para. 624; Tolimir Trial
Judgment, supra n. 63, para. 905; ICTR, Ngirabatware, Trial Chamber Judgment, ICTR-99-54-T,
20 December 2012, para. 1292; Stanišić and Župljanin Trial Judgment, supra n. 67, Vol. I, para. 98; Prlić
et al. Trial Judgment, supra n. 28, Vol. I, para. 232; ICTR, Ndindiliyimana et al., Appeals Chamber Judgment,
ICTR-00-56-A, 11 February 2014, paras. 291, 365; Nyiramasuhuko et al. Appeal Judgment, supra n. 39, para.
976; Karadžić Trial Judgment, supra n. 16, para. 573. See also Kordić and Čerkez Trial Judgment, supra n. 4,
para. 385; Kayishema and Ruzindana Appeal Judgment, supra n. 37, paras. 186, 198.

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29. At this point, it is worth noting that the jurisprudence has never explained exactly
what is meant by this supposed ‘directness’ requirement and the kind of evidence
necessary to satisfy it. Nonetheless, according to its plain meaning, directness can be
read in at least two ways. First, it can be read to mean that the accused must have directly
imparted or transmitted the relevant order to the physical perpetrators of the crime(s).
That is, there must be a direct line between the accused and the commission of the
crime(s). Second, it can also be read to mean that the accused’s order must have been
directed towards the commission of the crime(s) (rather than directed towards legal
objectives). Neither reading withstands scrutiny.
30. The first reading would directly clash with accepted jurisprudence which holds that
an accused need not give the order directly to the physical perpetrators and, in addition,
that ordering liability may ensue from the passing down, transmitting or reissuing of
orders.79 There are also convincing policy reasons as to why this reading is unsustainable.
When persons in power at the highest echelons of the state (or, perhaps, of a non-state
armed group) are involved in international crimes, they are inevitably part of a complex
and multilayered system of political, military and bureaucratic structures. As a result, such
persons are geographically, operationally and structurally distant from the people who
physically perpetrate crimes. Rarely, if ever, is there a direct line of contact between the
people in power and the physical perpetrators. For ordering to require such a direct line
would mean that ordering could seldom, if ever, be used to impute international crimes to
persons in the highest echelons of power. Rather, ordering would be used to attribute
international crimes to persons much further down the chain of command with direct
links to the physical perpetrators. Since ICL, particularly the ad hoc and hybrid Tribunals
and the ICC, is generally focused on cases involving those individuals at the highest levels
of power, it would indeed be odd to recognize a mode of liability of this kind.
31. The second reading is analogous to the recent debate regarding the meaning of
‘specific direction’ vis-à-vis the actus reus of aiding and abetting (see Ch. 7, Section 7.3.2(a)
of the Study). The SCSL’s Taylor Appeal Judgment addressed this matter in some detail
and, in so doing, also made findings with respect to ordering. It held that the central issue
relating to aiding and abetting was not whether the assistance was rendered to the physical
perpetrators or that the materiel provided was actually used in the commission of crime(s)
(i.e. directed towards criminal activity). Rather, it was whether such assistance had
a substantial effect on the commission of the relevant crimes. Crucially, the Taylor
Appeal Judgment went on to say ‘that this applies equally to personal culpability for
ordering, planning and instigating the commission of crimes’, citing case law to that
effect.80 While some ICTR appeal judgments following the Taylor Appeal Judgment have
continued to utilize the ‘direct’ language with respect to the substantial effect/contribution
requirement,81 the matter was not expressly considered in the same manner and detail as
in the Taylor Appeal Judgment (even if the latter considered the issue as an obiter dictum).

79
Supra para. 22, fns 63, 65. See also United States of America v. von Leeb et al. (‘High Command Case’), supra n. 7,
651 (‘[w]e are not concerned in this case with the fact that the defendant did not have direct command
authority or disciplinary authority over the personnel of camps or units of the army’).
80
Taylor Appeal Judgment, supra n. 18, para. 368, fns 1137–1139.
81
See Ndindiliyimana et al. Appeal Judgment, supra n. 78, paras. 291, 365; Nyiramasuhuko et al. Appeal
Judgment, supra n. 39, para. 976.

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In any event, if one recognizes a ‘specific direction’ or similar requirement with respect to
ordering, one would also have to explain why this requirement is justified when it has
simultaneously been rejected at the ICTY, ECCC and the SCSL for aiding and abetting82
(and planning and instigating in the Taylor Appeal Judgment). On its face, there appears
to be no reason why ordering should be the odd one out. In addition, and perhaps more
importantly, it would practically render non-existent the alternative mens rea requirement
of ‘awareness of the substantial likelihood that a crime will be committed’ pursuant to the
order. After all, if the order must be directed (specifically or otherwise) towards criminal
activity, then the accused would in most, if not all, cases have direct intent (i.e. intend that
the crimes be committed pursuant to his/her order). This would effectively rule out the
possibility of indirect intent for ordering.
32. Therefore, it appears that despite conflicting jurisprudence, an additional ‘direct-
ness’ requirement is not necessary for ordering as a mode of liability. Nonetheless, until
this issue is squarely identified and a definitive ruling on it is handed down, it is possible to
argue the matter before international criminal tribunals.

(b) Authority over the physical perpetrators

33. ICL jurisprudence is also somewhat problematic when describing ordering’s author-
ity requirement. While it is clear that this authority need not be at the level of ‘effective
control’ (as required for command/superior responsibility),83 it is less clear whether this
authority needs to be exercised directly over the physical perpetrators. This issue arises
from the language of the case law, as some judgments describe the authority requirement
as concerning a direct relationship between the individual who gives the order and the one
who physically executes it.84
34. To the extent that this jurisprudence holds that a direct and unimpeded line of
authority between the person who gives the order and the physical perpetrator is required,
it should not be followed. As mentioned earlier, it has been recognized since World War II
and in modern case law that a person can be found guilty of ordering for the passing down,
transmitting or reissuing of orders to others (who then go on to physically perpetrate the
82
See Taylor Appeal Judgment, supra n. 18, paras. 471–481; Šainović et al. Appeal Judgment, supra n. 9, paras.
1617–1651; Nuon and Khieu 002/01 Trial Judgment, supra n. 5, paras. 707–710; ICTY, Popović et al., Appeals
Chamber Judgment, IT-05-88-A, 30 January 2015, para. 1758; ICTY, Stanišić and Simatović, Appeals Chamber
Judgment, Case No. IT-03-69-A, 9 December 2015, paras. 94–108; Karadžić Trial Judgment, supra n. 16, para.
576; Mladić Trial Judgment, supra n. 17, para. 3567. See also Nyiramasuhuko et al. Appeal Judgment, supra
n. 39, paras. 1955, 3332, 3343 (which do not mention ‘specific direction’ when discussing the elements of aiding
and abetting).
83
Supra para. 6, fn. 17.
84
Strugar Trial Judgment, supra n. 23, para. 332 (‘the person ordering the commission of a crime [must] have
authority over the person physically perpetrating the crime’); Semanza Appeal Judgment, supra n. 16, paras.
360–361 (confirming the Semanza Trial Judgment which held that ‘ordering . . . implies the existence of
a superior–subordinate relationship between the individual who gives the order and the one who executes it’);
Kamuhanda Appeal Judgment, supra n. 16, para. 75 (‘it is sufficient that the accused have authority over the
perpetrator of the crime’); Ntagerura et al. Appeal Judgment, supra n. 21, fn. 310 (‘[ordering] requires the
implied existence of a superior–subordinate relationship between the direct perpetrators and the accused’);
Haradinaj et al. Trial Judgment, supra n. 18, para. 144 (‘[t]he person giving the order must . . . be in a position
of formal or informal authority over the person who commits the crime’); Gotovina et al. Trial Judgment, supra
n. 18, para. 1959 (‘[t]he person giving the order must . . . be in a position of formal or informal authority over
the person who commits the crime’). See also Boškoski and Tarčulovski Appeal Judgment, supra n. 17, fn. 442.

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 orde r ing 299

crime(s)).85 Yet in such a scenario, the person who gives the original order would not have
a direct line of authority (or even communication) with the physical perpetrators. Instead,
the order is passed down (perhaps through multiple layers in the chain of command) and
not given directly to the physical perpetrators. As a corollary, following the aforemen-
tioned jurisprudence would also be inconsistent with the accepted principle that an
accused need not give an order directly to the physical perpetrators.86 In the same vein,
the requirement of a direct and unimpeded line of authority would create a bizarre
anomaly. When an order is passed down, transmitted or reissued, it would mean that
the person who gives the original order would – at most – be liable for instigating, since he/
she would not have a direct line of authority to the physical perpetrators. Ironically, it
would only be the person who passes down, transmits or reissues the order directly to the
physical perpetrators, rather than the person who issued the order in the first place, that
could be guilty of ordering.
35. Additionally, the actus reus of ordering does not support a requirement of
a direct line of authority between the accused and the physical perpetrators.
As explained and discussed above in Subsection (a), there is no requirement for the
actus reus to have a direct and substantial effect on the commission of the crime(s).
Recognizing that a direct line of authority is required would be inconsistent with this,
and the same reasoning used to reject a ‘directness’ requirement earlier in the actus
reus would apply with equal force here.
36. This is not to say, however, that the absence of a relationship of authority is
permitted. Indeed, this element is the very cornerstone of ordering liability and must
exist. Rather, it is simply to say that this relationship need not be direct and unimpeded
vis-à-vis the physical perpetrators; the accused can be in an indirect relationship of
authority with respect to the physical perpetrators because of his/her position within the
chain of command. In other words, while in some situations the authority of the person
who issues the original order is not directly felt by the physical perpetrators (indeed, they
may not even have met him/her or necessarily know who that person is), his/her authority
can nonetheless be felt indirectly through the various command or state structures that
ensure that the order is ultimately transmitted to the physical perpetrators who then carry
out the criminal offences.

(c) Commission of a crime at the ICC

37. Ordering at the ICC differs from ordering at other international criminal tribunals.
Under Article 25(3)(b) of the ICC Statute, the ICC does not require the relevant crime to
be fully completed/committed for ordering liability to be engaged. It is enough that
a crime be attempted pursuant to the order.87 This position is different from that found
in the jurisprudence at the ad hoc and hybrid Tribunals, which expressly state that a crime

85
Supra para. 22, fn. 65.
86
Supra para. 22, fn. 63.
87
See Art. 25(3)(c) ICC Statute (emphasis added): ‘a person shall be criminally responsible and liable for
punishment . . . if that person . . . [o]rders . . . the commission of a crime which in fact occurs or is attempted’.
See also Mudacumura Arrest Warrant Decision, supra n. 16, para. 63; Ntaganda Confirmation of Charges
Decision, supra n. 16, para. 145; L. Gbagbo Confirmation of Charges Decision, supra n. 34, para. 242; Blé Goudé,
Confirmation of Charges Decision, supra n. 34, para. 159.

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must be fully executed.88 These two positions are at direct odds with each other. However,
this divergence can be explained when one appreciates that the ICC’s position matches the
one taken in the 1996 ILC Draft Code of Crimes, and, in addition, when the rationale given
for the ILC’s approach is considered.
38. Article 2(3)(b) of the 1996 ILC Draft Code of Crimes states that ‘[an] individual shall
be responsible for a crime set out in article 17, 18, 19 or 20 if that individual: . . . Orders the
commission of such a crime which in fact occurs or is attempted’. The commentary to this
provision explains the underlying rationale for not requiring that a crime be fully
completed:
the criminal responsibility of a superior is extended to include situations in which
a subordinate attempts and fails to carry out the order to commit a crime since the subordinate
would incur criminal responsibility in such a situation under subparagraph (g) [(which
criminalizes attempt)]. It would clearly be a travesty of justice to hold the subordinate
responsible for attempting to commit a crime pursuant to the order of his superior while
permitting the superior to escape responsibility as a result of the subordinate’s failure to
successfully carry out the orders.

39. Thus, the inclusion of ordering without requiring a fully completed offence in the
1996 ILC Draft Code of Crimes naturally followed from the inclusion of criminal liability
for attempt in same document. The above reasoning set forth by the ILC adequately
explains, and applies with equal force to, the aforementioned divergence. At the ICC,
attempt is recognized and can give rise to criminal responsibility.89 In contrast, the ad hoc
and hybrid Tribunals have not recognized attempt with respect to core international
crimes, with the sole exception of genocide at the ICTY, ICTR and ECCC (a crime that has
never been prosecuted in ICL).90 Therefore, it makes sense that liability for ordering can
ensue at the ICC even if a crime is not fully completed.
40. As a result, where a court recognizes individual criminal responsibility for attempt-
ing the commission of international crimes, then ordering should not require a fully
executed offence; this is in line with the provisions of the ICC. But where a court does not,
then the offence should be completed/committed for ordering liability to ensue; this is in
line with the jurisprudence of the ad hoc and hybrid Tribunals.

(d) Indirect perpetration

41. Some academics are of the view that ordering is a principal – not an accessorial –
mode of liability. They argue this because, in their view, ‘[a] person who orders a crime is
not a mere accomplice but rather an indirect perpetrator, abusing his position of authority

88
Supra para. 25, fn. 73.
89
See Art. 25(3)(f) ICC Statute: ‘a person shall be criminally responsible . . . for a crime within the jurisdiction of
the Court if that person . . . [a]ttempts to commit such a crime by taking action that commences its execution
by means of a substantial step, but the crime does not occur because of circumstances independent of the
person’s intentions’.
90
See Art. 4(3)(e) ICTY Statute; Art. 2(3)(e) ICTR Statute; Art. 4 ECCC Law. Also note that most modern
international or hybrid criminal Tribunals have recognized attempt in the context of contempt of court/
interference with the administration of justice offences. See Rule 77(B) ICTY Rules (see also ICTY, Beqaj, Trial
Chamber Judgment, IT-03-66-T-R77, 27 May 2005 (where the accused was charged with attempt)); Rule 77(B)
ICTR Rules; Rule 90(B) MICT Rules; Rule 77(B) SCSL Rules; Rule 77(B) RSCSL Rules; Rule 35(1)(g) ECCC
Internal Rules; Rule 60bis(B) STL Rules.

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to force a subordinate to commit a crime’.91 Indeed, viewed in this light, it is easy to see
why ordering could be confused with committing a crime ‘through another person’, as
stipulated in Article 25(3)(a) of the ICC Statute. The person who imparts the order is the
‘perpetrator behind the perpetrator’. His/her will is realized through the actions of the
physical perpetrator who is simply used as a mere tool to accomplish the accused’s
criminal aims.
42. Yet this position, if correct, would have the effect of making the inclusion of
ordering in Article 25(3)(b) of the ICC Statute redundant. In addition, it would be
inconsistent with the case law of the ICC Appeals Chamber, which has clearly and
unequivocally held that ordering is an accessorial mode of liability,92 although it has
not been afforded the opportunity to explain why (particularly in light of the afore-
mentioned opposing view). The answer lies, it is submitted, within ordering’s author-
ity requirement. As explained above, while such authority must exist, it does not need
to rise to the level of ‘effective control’.93 It is sufficient that the authority compelled
the commission of the crime(s). In other words, the accused does not need to exercise
complete or even direct control (effective control) over the will of the physical
perpetrators. Thus, although the person who imparts the order must exercise some
level of authority, that authority does not have to rise to the level where the will of the
physical perpetrators is made subject to the will of the one ordering, as is the case
when effective control exists.
43. The distinction is a subtle but important one, as it serves to distinguish ordering
from indirect perpetration. This distinction can be aptly seen when one considers indirect
perpetration/commission through an organization based on a hierarchical apparatus of
power, as recognized by the ICC’s case law (see Chapter 3 of the Study for an in-depth
discussion of this mode of liability). In such an environment, the level of control exercised
by the accused over the apparatus of power – and, through this apparatus, the physical
perpetrators – is such that it ensures automatic compliance with his/her orders. As the
ICC put it:
The leader’s ability to secure this automatic compliance with his orders is the basis for his
principal – rather than accessorial – liability. The highest authority does not merely order the
commission of a crime, but through his control over the organisation, essentially decides
whether and how the crime would be committed.94

91
See Ambos, Treatise, supra n. 1, at 163. See also A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese,
P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary
(Oxford: Oxford University Press, 2002), Vol. I, 767, at 796 et seq.; Ambos, ‘Article 25’, supra n. 1, at 1001,
para. 18.
92
Lubanga Appeal Judgment, supra n. 1, para. 462 (holding that the ICC Statute distinguishes between the
commission of a crime – principal liability (Art. 25(3)(a)) – and contributions to the commission of a crime –
accessorial liability (Art. 25(3)(b)–(d)). See also ICC, Bemba et al. Sentencing Appeal Judgment, supra n. 1,
paras. 59–60 (recognizing that Article 25(3)(b) refers to accessorial modes of liability and finding that
accessories do not, as a matter of law, deserve a lower sentence than principals (co-perpetrators)).
93
Supra para. 6, fn. 17.
94
Katanga and Ngudjolo Confirmation of Charges Decision, supra n. 32, para. 518. See also Al-Bashir Arrest
Warrant Decision, supra n. 32, para. 211; M. Gaddafi et al. Arrest Warrant Decision, supra n. 32, para. 69; Ruto
et al. Confirmation of Charges Decision, supra n. 32, para. 292; Muthaura et al. Confirmation of Charges
Decision, supra n. 32, para. 297; Katanga Trial Judgment, supra n. 32, paras. 1407–1412.

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 302 manuel j. ventura

44. Simply put, this level of control – which may even go above and beyond effective
control – is simply not necessary for ordering liability to be engaged. Therefore, in the
absence of such control, it is right that ordering not be considered a principal mode of
liability. Instead, an accused who possesses a lower level of control should be recognized as
an accessory to criminal activity.
45. For these reasons, when an accused orders the commission of a crime when he/she
exercises ‘effective control’ or higher over the perpetrators, then his/her conduct should be
characterized as committing a crime through another person, thus attracting criminal
liability as a principal. When the accused’s authority does not rise to this level, then
ordering liability should ensue (provided, of course, that the other requirements for
ordering are also met).

(e) Mens rea and the ICC

46. At the ICC, in the absence of contrary language in Article 25(3)(b), ordering’s mens
rea is governed by the overarching mental element contained in Article 30. Thus, ordering
must be carried out with intent and knowledge. This is twofold. First, in relation to the
accused’s own conduct, he/she must mean to issue the order at issue (i.e. ‘means to engage
in the conduct’ and awareness that he/she has issued the order as per Articles 30(2)(a) and
30(3))). Second, in relation to the consequences of the order, he/she must mean to cause
the crimes carried out pursuant to the order or, alternatively, be aware that they will occur
in the ordinary course of events.95 Thus, the accused must be aware of his/her order and its
criminal consequences or that the criminal consequences of the order will occur in the
ordinary course of events (i.e. knowledge).96
47. While Article 30 clearly recognizes direct intent, some debate has ensued concerning
the alternative (and lower) mens rea requirement that the criminal consequences ‘will
occur in the ordinary course of events’. While some early ICC jurisprudence asserted that
this encompassed dolus eventualis (or advertent recklessness),97 other cases rejected this
proposition as well as other lower mens rea thresholds such as recklessness or
negligence.98 However, the ICC Appeals Chamber has since provided some clarity on
this matter. It has held that the words ‘will occur in the ordinary course of events’ entail
a ‘standard for the foreseeability of events [of] virtual certainty’,99 such that ‘barring an
unforeseen or unexpected intervention that prevents its occurrence’,100 it is virtually
certain that the crime will follow.

95
See Art. 30(2)(b) ICC Statute.
96
See Art. 30(3) ICC Statute.
97
See ICC, Lubanga, Confirmation of Charges Decision, ICC-01/04-01/06-803-tEN, 29 January 2007, paras.
352–354; Katanga and Ngudjolo Confirmation of Charges Decision, supra n. 32, para. 251, fn. 329.
98
See Lubanga, Confirmation of Charges Decision, supra n. 97, para. 355, fn. 438; ICC, Bemba, Confirmation of
Charges Decision, ICC-01/05-01/08-424, 15 June 2009, para. 360; Ruto et al. Confirmation of Charges
Decision, supra n. 32, paras. 335–336; ICC, Lubanga, Trial Chamber Judgment, ICC-01/04-01/06-2842,
14 March 2012, para. 1011; Katanga Trial Judgment, supra n. 32, paras. 775–776.
99
Lubanga Appeal Judgment, supra n. 1, para. 447 (original emphasis). See also Bemba Confirmation of Charges
Decision, supra n. 98, paras. 362, 369; Katanga Trial Judgment, supra n. 32, para. 776; Bemba et al. Trial
Judgment, supra n. 37, para. 29.
100
Bemba Confirmation of Charges Decision, supra n. 98, para. 362; Katanga Trial Judgment, supra n. 32, para.
777; Bemba et al. Trial Judgment, supra n. 37, para. 29.

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48. As a result, ordering at the ICC cannot be established on the basis that the accused
was aware of the substantial likelihood that a crime would be committed in the execution
of his/her order, as it can at the ad hoc and hybrid criminal Tribunals.101 Indeed, the ICC
Appeals Chamber has held that the notion of risk (including considerations of possibility,
probability and danger) in the context of Article 30 ‘does not help in creating more clarity’
and should be avoided.102 Yet, such concepts are inherent in considering whether, as
a result of an order, a substantial likelihood existed that crimes would take place. In short,
ordering’s mens rea – in relation to the consequences of the order – is stricter at the ICC
than it is at the ad hoc and hybrid Tribunals.
49. This difference is explained by the existence of a default mens rea at the ICC as
outlined in Article 30 of the ICC Statute and its interpretation by the ICC Appeals
Chamber. It also reflects Article 30’s travaux préparatoires, whereby proposals for the
inclusion of concepts such as dolus eventualis and recklessness, which are more conducive
to the recognition of a mens rea of a ‘substantial likelihood’ that a crime would be
committed, were ultimately rejected.103 Therefore, the stricter mens rea standard for
ordering at the ICC is restricted solely to the confines of that court and its particular
legal architecture. The ICC’s strict standard represents a departure from the generally
accepted ICL customary principles on ordering.

9.3.3 Overall Assessment

50. Ordering liability has been applied and interpreted by the ad hoc and hybrid
Tribunals over a number of years. As a result, there is a generally uniform approach
to its constitutive elements and requirements. Ordering has not elicited major
visible disagreements or divergence in the jurisprudence; perhaps with the sole
exception being the element associated with the actus reus. However, for the reasons
discussed above in Section 9.3.2(a), such an element is not a necessary requirement
for ordering liability. Similarly, the jurisprudence could be read to require a direct
and unimpeded line of authority between the accused and the physical perpetrators.
This requirement is also unnecessary (see Section 9.3.2(b)). While ordering at the
ICC differs from the ad hoc and hybrid Tribunals, in that the former does not
require the crime to be fully executed and completed, this difference is explained by
the fact that the ICC recognizes attempt (see Section 9.3.2(c)). There is also
academic disagreement as to whether ordering should merely entail accessorial
criminal responsibility or, instead, principal criminal responsibility in the form of
indirect perpetration (committing a crime through another person). However, as
explained above in Section 9.3.2(d), because ordering does not require effective
control over the actions of the physical perpetrator, such sentiments are unwar-
ranted. Lastly, the mens rea for ordering is stricter at the ICC than at the ad hoc and
hybrid Tribunals, but this stems from the existence of Article 30 of the ICC Statute
(see Section 9.3.2(e)).

101
Supra para. 8, fn. 25.
102
Lubanga Appeal Judgment, supra n. 1, para. 449.
103
See Bemba Confirmation of Charges Decision, supra n. 98, paras. 364–368.

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9.4 Status under International Criminal Law

51. On the basis of the above analysis, there is no difficulty in concluding that ordering
has crystallized into a norm of customary international law. Indeed, this recognition
follows clearly from the ICTY’s very first case.104 However, there are some differences
between ordering at the ICC and ordering at the ad hoc and hybrid Tribunals, the latter
being mandated to apply customary international law. These differences, however, are
indicative of a divergence by states from customary international law in their inter partes
relations by virtue of ICC Statute provisions (as is the case with respect to the mens rea of
ordering and Article 30). In other cases, they stem from the inclusion of specific
provisions in the ICC Statute that are largely absent from the ad hoc and hybrid
Tribunals’ Statutes and jurisprudence (as is the case with respect to attempt).
As a result, these differences should not be viewed as emblematic of divergences in
ICL that reflect deep ideological divides or normative disagreements in relation to
ordering.

9.5 Evidentiary Factors

52. In addition to elucidating the various elements of ordering, the jurisprudence –
particularly the Galić Trial Judgment – has also provided some useful insights as to the
evidentiary factors that can be indicative of individual criminal responsibility under
ordering as a mode of liability. These include:
– The number of illegal acts committed;105
– The number, identity and type of persons involved;106
– The control exerted over such persons;107
– The logistics involved in the commission of the crimes;108
– The widespread occurrence of the illegal acts;109
– The tactical tempo of the crimes;110
– The modus operandi of similar acts;111
– The location of the person with authority at the time of the crimes;112 and
– The person with authority’s knowledge of the criminal acts committed under his
authority.113

53. Additionally, ordering need not be proved through direct evidence; there is no
requirement of a ‘smoking gun’ to show that an accused explicitly ordered the commission

104
Tadić Trial Judgment, supra n. 3, paras. 663–669 (holding that the various modes of liability included in
Article 7(1) of the ICTY Statute (including ordering) have a basis in customary international law). See also
Delalić et al. Trial Judgment, supra n. 4, para. 321.
105
Galić Trial Judgment, supra n. 6, para. 171.
106
Ibid.
107
Ibid.
108
Ibid.
109
Ibid.
110
Ibid.
111
Ibid.
112
Ibid.
113
Ibid.

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 or de rin g 305

of crimes.114 The existence of an order, as well as the other requirements for ordering, can
be proven through circumstantial evidence, although with the proviso that they be the only
reasonable inferences based on the evidence.115 Indeed, it is rare to find documents or
other physical evidence that shows that an accused ordered the commission of specific
crimes. Rather, most documents appear, at least on paper, to order legitimate
operations116 (the historical exception of course being Nazi Germany during World
War II). In any event, there is no requirement that the orders in question be inherently
illegal117 and, further, there is no need to show that an order was given in writing or in any
particular form.118

9.6 Concluding Principles

54. The following concluding principles can be drawn from the above analysis: first,
ordering is an accessorial mode of liability that applies equally to all international
crimes. Second, ordering requires the accused to be in some position of authority with
respect to the physical perpetrator(s), but does not require this authority to be at the
level of ‘effective control’ in the command/superior responsibility sense. Third, order-
ing liability ensues when the crime concerned is completed (or attempted, in certain
circumstances). Fourth, ordering cannot be established on the basis that the accused
omitted to impart an order, but can be established if the accused ordered an omission.
Fifth, ordering liability requires the order to have had a substantial effect on, or
substantially contributed to, the commission of the crime concerned. Sixth, ordering
requires the accused to directly intend the commission of the crime or, in the alter-
native, to indirectly intend the commission of the crime (i.e. through an awareness of
the substantial likelihood that the crime would be committed as a result of the
execution of the order). Seventh, it is the intent of the person who imparts the order
that is relevant; he/she need not share the intent of the physical perpetrators. Last,
ordering as a mode of liability and the existence of the relevant order can be proven on
the basis of circumstantial and indirect evidence as long as they are the only reasonable
inference based on the evidence.

114
D. Milošević Appeal Judgment, supra n. 17, para. 267; R. Cryer, H. Friman, D. Robinson and W. Wilmshurst,
An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge: Cambridge University
Press, 2014), at 375.
115
Meyer (‘Abbaye Ardenne Case’), Case No. 22, Canadian Military Court (Aurich), 10–28 December 1945, in
LRTWC, Vol. IV, at 108; Blaškić Trial Judgment, supra n. 6, para. 281; Kamuhanda Appeal Judgment, supra
n. 16, para. 76; Galić Appeal Judgment, supra n. 17, paras. 170–171, 177–178; Brima et al. Trial Judgment,
supra n. 21, para. 772; Boškoski and Tarčulovski Trial Judgment, supra n. 21, para. 400; Sesay et al. Appeal
Judgment, supra n. 17, para. 164; D. Milošević Appeal Judgment, supra n. 17, para. 265; Boškoski and
Tarčulovski Appeal Judgment, supra n. 17, para. 160; Kaing Trial Judgment, supra n. 18, para. 527; Renzaho
Appeal Judgment, supra n. 25, para. 318; Hategekimana Appeal Judgment, supra n. 16, para. 67; Prlić et al.
Trial Judgment, supra n. 28, Vol. I, para. 231; Ndindiliyimana et al. Appeal Judgment, supra n. 78, para. 291.
116
See also Boškoski and Tarčulovski Appeal Judgment, supra n. 17, para. 172 (‘the legitimate character of an
operation does not exclude an accused’s criminal responsibility for planning, instigating and ordering crimes
committed in the course of this operation. In other words, even if the goal of an operation is to root out
“terrorists”, this must not be achieved by an act that constitutes a crime’.)
117
Supra para. 24, fn. 71.
118
Supra para. 23, fn. 67.

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 306 m a n u el j . v en t u r a

Select Bibliography
K. Ambos, Treatise on International Criminal Law – Volume 1: Foundations and General Part
(Oxford: Oxford University Press, 2013).
K. Ambos, ‘Article 25: Individual Criminal Responsibility’, in O. Triffterer and K. Ambos (eds.),
The Rome Statute of the International Criminal Court: A Commentary (3rd edn, Munich: [Link],
2016), 979.
G. Boas, J. L. Bischoff and N. L. Reid, International Criminal Law Practitioner Library – Volume I:
Forms of Responsibility in International Criminal Law (Cambridge: Cambridge University Press,
2007).
R. Cryer, H. Friman, D. Robinson and W. Wilmshurst, An Introduction to International Criminal Law
and Procedure (3rd edn, Cambridge: Cambridge University Press, 2014).
A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.),
The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford
University Press, 2002), Vol. I, 767.
S. Finnin, Elements of Accessorial Modes of Liability: Article 25 (3)(b) and (c) of the Rome Statute of the
International Criminal Court (Leiden: Nijhoff, 2012).
R. O’Keefe, International Criminal Law (Oxford: Oxford University Press, 2015).
W. A. Schabas, ‘Article 25: Individual Criminal Responsibility / Responsabilité pénale individuelle’, in
The International Criminal Court: A Commentary on the Rome Statute (2nd edn, Oxford: Oxford
University Press, 2016), 559.
E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University
Press, 2012).
G. Werle and F. Jessberger, Principles of International Criminal Law (3rd edn, Oxford: Oxford
University Press, 2014).

Selected Cases

United States of America v. von Leeb et al. (“High Command Case”), Case No. 12, Military Tribunal
V (Nuremberg), 27–28 October 1948, in TWC (Green Series), Vol. XI.
ICTY, Galić, Trial Chamber Judgment, IT-98-29-T, 5 December 2003.
ICTY, Kordić and Č erkez, Appeals Chamber Judgment, IT-95-14/2-A, 17 December 2004.
ICTR, Kamuhanda, Appeals Chamber Judgment, ICTR-99-54A-A, 19 September 2005.
ICTY, Galić, Appeals Chamber Judgment, IT-98-29-A, 30 November 2006.
ICTR, Nahimana et al., Appeals Chamber Judgment, ICTR-99-52-A, 28 November 2007.
ICTY, D. Milošević, Appeals Chamber Judgment, IT-98-29/1-A, 12 November 2009.
ICTY, Boškoski and Tarčulovski, Appeals Chamber Judgment, IT-04-82-A, 19 May 2010.
SCSL, Taylor, Appeals Chamber Judgment, SCSL-03-01-A, 26 September 2013.
ICTR, Nyiramasuhuko et al., Appeals Chamber Judgment, ICTR-98-42-A, 14 December 2015.
ICTY, Karadžić, Trial Chamber Judgment, IT-95-5/18-T, 24 March 2016.

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