ABSTRACT
In 2009, the ICTY Appeals Chamber upheld Veselin Šljivančanin’s conviction for torture, and added a conviction for murder, on the basis of ‘aiding and abetting by omission’. Šljivančanin was not convicted of superior responsibility because his subordinates, a military police unit that had transferred the victims into the custody of a group of militiamen who killed the victims; he was instead found to have been an accessory of the perpetraitors for having failed to prevent the transfer. A three-part test of liability was applied: (i) knowledge of the likely crime of the perpetrator; (ii) a duty of action arising from a rule of international humanitarian law; and (iii) a ‘capacity to act’.1 Along the way, the Appeals Chamber abandoned the requirement that the assistance of an aider and abettor be ‘specifically directed’ towards the crime.2 Šljivančanin was therefore not required to have withdrawn the military police for the purpose of facilitating the crime, nor, according to the Appeals Chamber, was there any need to show that the militiamen were aware, much less encouraged, by the alleged inactivity.3 At least two other accused have been convicted under the same form of liability.4
