Prosecutor v. Šainović et al.

Case Name: 
Prosecutor v. Šainović et al.
IT-05-87-A (Appeals Chamber Judgement)
Decision Date: 
January 23, 2014
Key Facts: 

The Trial Chamber found that during the spring of 1999, forces of the FRY and Serbia forcibly displaced the Kosovo Albanian population both within and outside Kosovo, killing at least 600 individuals and destroying buildings. The Trial Chamber convicted Lazarevic for aiding and abetting the crimes of deportation and other inhumane acts (forcible transfer) as crimes against humanity. The Trial Chamber acquitted Mr. Lazarević of aiding and abetting murder as a crime against humanity, murder as a violation of the laws or customs of war, and persecution through murder as a crime against humanity. The Appeals Chamber reversed parts of the Trial Chamber’s holding, on the basis that the alleged omission did not substantially contribute to the perpetration of the crime.


1. Practical assistance, encouragement, or moral support with “a substantial effect on the perpetration of the crime” (¶ 1624)

2. Knowledge that these acts assist the commission of the offense (¶ 1649)

Key Passages : 

ACTUS REUS: The Appeals Chamber, by majority, rejected the specific direction element and affirmed “the prevailing law in holding that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perisic Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard” (¶ 1650).

MENS REA: “[A]t most, the information Lazarevic received in 1998 made him aware of the probability that the VJ forces would use excessive and indiscriminate force or commit other crimes if ordered to operate in Kosovo in 1999. However, the Appeals Chamber finds that on the basis of such knowledge alone no reasonable trier of fact could have concluded that [this was] the only reasonable inference” (¶ 1709). Still, due to other evidence, the Appeals Chamber upheld the Trial Chamber’s finding that Mr. Lazarević aided and abetted the crimes of deportation and inhumane acts. “Specifically, in light of the variation among national jurisdictions with respect to aiding and abetting liability, the Appeals Chamber considers that no clear common principle in this respect can be gleaned from the major legal systems of the world” See n. 5409 for a comparative law analysis (¶ 1644).

Appeals Chamber