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The present article analyses the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) jurisprudence on omission liability – as a perpetrator or accomplice – for crimes actively committed by others. After explaining how the Tribunals have applied the concept in relation to specific modes of liability, an in-depth assessment of the case law is undertaken with respect to relevant duties to act, the material ability to behave in accordance with such duties, the link between a failure to do so and the commission of crimes, as well as the requisite mens rea. The intellectual foundations of this form of liability remain, to a large extent, unexplored and unexplained in the jurisprudence, which sometimes even appears to treat omissions and actions as equivalent. The article addresses the potentially far-reaching implications of the Tribunals’ findings for the future and explores some of the questions yet unanswered.

This article explores icty and ictr jurisprudence on central aspects of aiding and abetting liability, in particular with respect to holding high-ranking military and political figures accountable for international crimes in which they were not directly involved. A close look is taken at the Tribunals’ interpretation – both in law and fact – of the actus reus of aiding and abetting (specifically substantial contribution, encouragement and moral support as well as the temporary alignment between an act of assistance and knowledge that it will contribute to crimes), mens rea (including the threshold of intent, requisite specificity of knowledge regarding crimes and a comparison with relevant case law on superior responsibility) and, finally, the controversial notion of specific direction. It is suggested that the icty and ictr have at times over-expanded criminal liability.

Article 8(2)(b)(iv), second alternative, of the Statute of the International Criminal Court lists as a war crime the launching of an attack that may cause excessive damage to the natural environment. The incorporation of this offence into the ICC Statute appears to be a great achievement, as it is the first time that such conduct has expressly been declared to entail individual criminal responsibility under an international treaty. It is, however, submitted that Article 8(2)(b)(iv), second alternative, of the ICC Statute, suffers from a serious lack of definition. In addition, the provision depends on an extremely high damage threshold which further complicates its application in practice.