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"The Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ratione materiae or who knowingly refrain from preventing or punishing the perpetrators of such crimes. ... Since the criminal intent is formulated at a high level of the administrative hierarchy, the violation of the norm of international humanitarian law is part of a system of criminality specifically justifying the intervention of the Tribunal."

Such statements illustrate the fundamental importance of the International Tribunal’s role in contributing to the restoration and maintenance of peace in the former Yugoslavia and the fostering of reconciliation through justice, by emphasising that individuals, and not groups, are responsible for crimes and that often those individuals are in positions of high authority in the State or military apparatus. Indeed, while particular acts of violence and destruction are perpetrated by individual members of the military or security forces on the ground, their superiors, who plan, order, instigate, or acquiesce in such atrocities, must bear at least an equal responsibility. Moreover, when atrocities are committed on a widespread scale, or systematically as part of an overall policy, those persons who conceive of and instigate the policy are culpable at the most basic of levels for violating fundamental principles of humanity, and should be punished accordingly. The view has often been expressed that the International Tribunal, as well as the ICTR, should concentrate its efforts on prosecuting persons in positions of authority responsible for such crimes against humanity, rather than so-called "small fry" who could easily be subject to domestic prosecution mechanisms.

In relation to violations of the laws or customs of war, the "widespread or systematic" element, central to the concept of crimes against humanity and indicating an overall policy, is absent. Thus, responsibility falls on the direct perpetrator of an offence (direct perpetrator responsibility under Article 7(1)) and his superior, if that superior directly ordered, instigated, or aided and abetted in the planning, preparation or execution of the offence (direct superior responsibility under Article 7(1)), or if he knew or had reason to know that the subordinate was about to commit or had committed such an offence and yet failed to take the necessary and reasonable steps to prevent or repress the commission of the crime or to punish the subordinate who had committed it (indirect superior responsibility under Article 7(3)).

There are also three levels at which criminal responsibility may be attributed for a crime against humanity: first, to the perpetrator himself, who directly commits the unlawful act as part of a widespread or systematic sequence (direct perpetrator responsibility under Article 7(1)); secondly, to the military or political superior who planned, instigated, or ordered, or who aided and abetted in the planning, preparation or execution of unlawful acts on a widespread or systematic scale (direct superior responsibility for policy and instigation under Article 7(1)); and thirdly, to the military or political superior who knew or had reason to

42. Prosecutor v Milan Martic, Review of the Indictment pursuant to Rule 61, 6 March 1996, IT-95-11-R61.