The Appeals Chamber reversed Orić’s convictions under Article 7(3) of the Statute for failing to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder (Count 1) and cruel treatment (Count 2) for insufficient evidence, including with respect to the “substantial effect” element (¶ 44).
In the context of omission:
1. Where there is a legal duty to act, omission “directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime” with a “substantial effect upon the perpetration of the crime” (¶ 43)
2. Knowledge “that his omission assists in the commission of the crime of the principal perpetrator” and awareness “of the essential elements of the crime which was ultimately committed by the principal” (¶ 43)
ACTUS REUS: “[O]mission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act. The Appeals Chamber has never set out the requirements for a conviction for omission in detail. However, at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting” (¶ 43).