Case No. ICTR-96-4-T - International Criminal Tribunal for Rwanda

479. Therefore, as can be seen, the forms of participation referred to in Article 6 (1),cannot render their perpetrator criminally liable where he did not act knowingly, and evenwhere he should have had such knowledge. This greatly differs from Article 6 (3)analyzed here below, which does not necessarily require that the superior actedknowingly to render him criminally liable; it suffices that he had reason to know that hissubordinates were about to commit or had committed a crime and failed to take thenecessary or reasonable measures to prevent such acts or punish the perpetrators thereof.In a way, this is liability by omission or abstention.480. The first form of liability set forth in Article 6 (1) is planning of a crime. Suchplanning is similar to the notion of complicity in Civil law, or conspiracy under Commonlaw, as stipulated in Article 2 (3) of the Statute. But the difference is that planning, unlikecomplicity or plotting, can be an act committed by one person. Planning can thus bedefined as implying that one or several persons contemplate designing the commission ofa crime at both the preparatory and execution phases.481. The second form of liability is 'incitation' (in the french version of the Statute) tocommit a crime, reflected in the English version of Article 6 (1) by the word instigated.In English, it seems the words incitement and instigation are synonymous82.Furthermore, the word "instigated" or "instigation" is used to refer to incitation in severalother instruments83. However, in certain legal systems and, under Civil law, inparticular, the two concepts are very different84. Furthermore, and even assuming thatthe two words were synonymous, the question would be to know whether instigationunder Article 6 (1) must include the direct and public elements, required for incitement,particularly, incitement to commit genocide (Article 2 (3)(c) of the Statute) which, in thisinstance, translates incitation into English as "incitement" and no longer "instigation".Some people are of that opinion85. The Chamber also accepts this interpretation 86.482. That said, the form of participation through instigation stipulated in Article 6 (1) ofthe Statute, involves prompting another to commit an offence; but this is different fromincitement in that it is punishable only where it leads to the actual commission of anoffence desired by the instigator87.483. By ordering the commission of one of the crimes referred to in Articles 2 to 4 of theStatute, a person also incurs individual criminal responsibility. Ordering implies asuperior- subordinate relationship between the person giving the order and the oneexecuting it. In other words, the person in a position of authority uses it to convinceanother to commit an offence. In certain legal systems, including that of Rwanda 88,ordering is a form of complicity through instructions given to the direct perpetrator of anoffence. Regarding the position of authority, the Chamber considers that sometimes it canbe just a question of fact.484. Article 6 (1) declares criminally responsible a person who "(...) or otherwise aidedand abetted in the planning, preparation or execution of a crime referred to in Articles 2to 4 (...)". Aiding and abetting, which may appear to be synonymous, are indeeddifferent. Aiding means giving assistance to someone. Abetting, on the other hand, would