M.3. The perpetrator aided, abetted or otherwise assisted in the commission or attempt of the crime

M.3.1. ICC

M.3.2. ICTY

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"574. Aiding and abetting is a form of liability in which the accused contributes to the perpetration of a crime that is committed by another person. The Prosecution must establish that the crime for which it seeks to make the accused responsible in fact occurred.

575. The physical element of aiding and abetting consists of acts or omissions "specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime[...]." This support must have a substantial effect upon the perpetration of the crime. Liability for "aiding and abetting by omission proper", which must be distinguished from aiding and abetting by tacit approval and encouragement, may only attach where an accused had both a legal duty to act and the means to fulfil this duty.

576. Whether an act or omission had a substantial effect on the commission of a crime is a factbased inquiry. The aider and abettor’s conduct may occur in a location remote from the scene of the crime. It is unnecessary to establish that the crime would not have been committed without the contribution of the aider and abettor. Nor must the Prosecution prove the existence of a plan or agreement between the aider and abettor and the perpetrator; the latter may not even know of the aider and abettor’s contribution. Finally, specific direction is not an element of aiding and abetting responsibility under customary international law. This means that there is no requirement of a showing that the acts of the Accused were specifically directed to assist, encourage, or lend moral support to the commission of the crimes. " [1]

In the Perišić Appeal Judgement, the Appeals Chamber held that:

In the Vasiljević Appeals Judgement it was held that:

"(…) aiding and abetting is a form of responsibility which generally warrants lower sentences than responsibility as a co-perpetrator."[2]

This was confirmed by the Mrkšić et al. Appeals Chamber:

"The Appeals Chamber agrees with ?ljivančanin that the fact that an accused did not physically commit a crime is relevant to the determination of the appropriate sentence. Indeed, the determination of the gravity of the crime requires not only a consideration of the particular circumstances of the case, but also of the form and degree of the participation of the accused in the crime. However, while the practice of the International Tribunal indicates that aiding and abetting is a lower form of liability than ordering, committing, or participating in a joint criminal enterprise and may as such attract a lesser sentence, the gravity of the underlying crimes remains an important consideration in order to reflect the totality of the criminal conduct"[3]

The Blaškić Appeals Chamber held that:

"The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime. In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required. It further agrees that the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime"[4]

In the Brđ;anin Trial Judgement it was held that:

"An accused will incur individual criminal responsibility for aiding and abetting a crime under Article 7(1) where it is demonstrated that the accused carried out an act that consisted of practical assistance, encouragement or moral support to the principal offender of the crime. The acts of the principal offender that the accused is alleged to have aided and abetted must be established. The act of assistance need not have caused the act of the principal offender, but it must have had a substantial effect on the commission of the crime by the principal offender. The assistance may consist of an act or omission, and it may occur before, during, or after the act of the principal offender."[5]

Concerning ex post facto complicity the Blagojević et al. Trial Chamber held that:

"It is required for ex post facto aiding and abetting that at the time of the planning, preparation or execution of the crime, a prior agreement exists between the principal and the person who subsequently aids and abets in the commission of the crime"[6]

 

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 1783-1784:

"1783. The Appeals Chamber recalls that the actus reus of aiding and abetting consists of “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”.⁵⁰³⁸ There is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime or that such conduct served as a condition precedent to the commission of the crime.⁵⁰³⁹ The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and the location at which the actus reus takes place may be removed from the location of the principal crime.⁵⁰⁴⁰"

 

"1784. The Appeals Chamber further recalls that the actus reus of aiding and abetting may be satisfied by a commander permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of a crime.⁵⁰⁴¹ The Appeals Chamber also recalls that the provision of engineering machinery and personnel for burial operations can have a substantial effect on the commission of mass executions.⁵⁰⁴² The Appeals Chamber will now consider whether a reasonable trial chamber could have found that there was no evidence of Pandurevic’s acts and omissions constituting aiding and abetting with respect to the crimes committed within the JCE to Murder.^5043"

 

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 353:

"353. For a Chamber to be able to reach a finding of aiding and abetting, it must be able to establish that the Accused had provided practical assistance, encouragement, or moral support that had a substantial effect on the perpetration of the crimes. […]"

                                                               

M.3.3. SCSL

In the Taylor case, the Appeals Chamber held that:

"It is fundamental in international criminal law that an accused may only be punished for his criminal conduct. As articulated by the Trial Chamber and affirmed above, the actus reus of aiding and abetting liability under customary international law requires that an accused’s acts and conduct have a substantial effect on the commission of the crimes. This requirement ensures that there is a sufficient causal link - a criminal link - between the accused and the commission of the crime before an accused’s conduct may be adjudged criminal. The jurisprudence is replete with examples of acts that may have had some effect on the commission of the crime, but which were found not to have a sufficient effect on the crime for individual criminal liability to attach.

The Appeals Chamber further observes that the causal link between the accused’s acts and conduct and the commission of the crime is to be assessed on a case-by-case basis: this case-by-case assessment ensures both that the culpable are properly held responsible for their acts and that the innocent are not unjustly held liable for the acts of others. Merely providing the means to commit a crime is not sufficient to establish that an accused’s conduct was criminal. Where the crime is an isolated act, the very fungibility of the means may establish that the accused is not sufficiently connected to the commission of the crime. Similarly, on the facts of a case, an accused’s contribution to the causal stream leading to the commission of the crime may be insignificant or insubstantial, precluding a finding that his acts and conduct had a substantial effect on the crimes. In terms of the effect of an accused’s acts and conduct on the commission of the crime through his assistance to a group or organisation, there is a readily apparent difference between an isolated crime and a crime committed in furtherance of a widespread and systematic attack on the civilian population. The jurisprudence provides further guidance, but it is the differences between the facts of given cases that are decisive.

Although the &Peri#x9A;ić Appeal Judgment introduces novel elements in its articulation of - specific direction, which may perhaps be developed in time, this Appeals Chamber is not persuaded that there is good reason to depart from settled principles of law at this time. As the Appeals Chamber has concluded, the requirement that the accused’s acts and conduct have a substantial effect on the commission of the crime ensures that there is a sufficient causal link between the accused and the commission of the crime. The Appeals Chamber has further concluded that this requirement is sufficient to ensure that the innocent are not unjustly held liable for the acts of others. Accordingly, the Appeals Chamber does not agree with the Perišić Appeals Chamber’s treatment of the accused’s physical proximity to the crime as a decisive consideration distinguishing between culpable and innocent conduct. This Appeals Chamber has previously held, consistent with the holdings of all other appellate chambers, that - acts of aiding and abetting can be made at a time and place removed from the actual crime. Whether the accused is geographically close to the scene of the crime may be relevant depending on the facts of the case, particularly where that presence is alleged to have contributed to the commission of the crime, but it is not a legal requirement. While an accused may be physically distant from the commission of the crime, he may in fact be in proximity to and interact with those ordering and directing the commission of crimes." [81]

In the Taylor case, the Appeals Chamber held that:

"The Appeals Chamber recalls its prior holding that the actus reus of aiding and abetting liability under Article 6(1) of the Statute and customary international law is that an accused’s acts and conduct of assistance, encouragement and/or moral support had a substantial effect on the commission of each charged crime for which he is to be held responsible."

In the Taylor case, the Appeals Chamber held that:

"Where the evidence establishes that the crimes were committed in the implementation of a plan, program, policy or strategy to commit such crimes, the crimes were committed, as a matter of fact, not by the physical actors alone, but by the organized participation and contributions of many persons. In accordance with the Statute and customary international law, triers of fact are required to consider whether, by assisting, encouraging or supporting the planning, preparation or execution of the plan, program, policy or strategy, an accused’s acts and conduct thereby had a substantial effect on some or all of the crimes committed in furtherance of the plan, program, policy or strategy. That an accused’s acts and conduct had a substantial effect on the commission of the crimes establishes the requisite actus reus for aiding and abetting liability, not the manner in which an accused assisted the commission of the crimes…" [84]

"Finally, the Appeals Chamber concludes that ’specific direction’ is not an element of the actus reus of aiding and abetting liability under Article 6(1) of the Statute or customary international law. Although the Perišić Appeal Judgment introduces novel elements in its articulation of "specific direction", which may perhaps be developed in time, this Appeals Chamber is not persuaded that there are cogent reasons to depart from its holding regarding the actus reus and mens rea of aiding and abetting liability under Article 6(1) of the Statute and customary international law." [85]

M.3.4. ICTR

In the Ndahimana Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime. The Appeals Chamber has explained that an individual can be found liable for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime. When this form of aiding and abetting has been a basis for a conviction, "it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it." [7] 

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, para. 3332: 

"3332. The Appeals Chamber recalls that the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” It is also well-established “that proof of a causal relationship, in the sense of a conditio sine qua non, between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition to the commission of the crime, is not required” as long as “the support of the aider and abettor has a substantial effect upon the perpetration of the crime.” Whether a particular contribution qualifies as “substantial” is a fact-based inquiry. Moreover, the actus reus may occur before, during, or after the principal crime has been perpetrated and the location at which the actus reus takes place may be removed from the location of the principal crime. The Appeals Chamber further recalls that it is not necessary for the principal perpetrator to be aware of the aider and abettor’s contribution."

Prosecutor v. Augustin Ngirabatware, Case No. MITC-12-29-A, Judgment (AC), 18 December 2014, paras. 144-145, 149-152:

"144. Ngirabatware argues that the Trial Chamber erred in finding that some of the weapons which he distributed at the roadblocks were later used to kill Tutsis in Nyamyumba Commune. Inparticular, he submits that there was no evidence showing that any of these weapons were, in fact, used to kill Tutsis. He also submits that the Trial Chamber failed to refer to particular incidents of killings and the approximate time of their commission, or to identify the physical perpetrators and the victims. Ngirabatware argues at, as a consequence, there was no "demonstrable relationship" between his acts and those of the physical perpetrators.

145. Ngirabatware further submits that, since he was not present at or near the scene of the crimes, the Trial Chamber erred in holding him responsible for aiding and abeuing through encouragement. He also argues that there was no evidence showing that any of the physical perpetrators was encouraged by his acts or words. Finally, he claims that the Trial Chamber erred in failing to determine whether the "specific direction" requirement of aiding and abetting had been satisfied in his case"

"149. The Appeals Chamber recalls that, while the Prosecution must establish the acts of the principal perpetrators for which it seeks to hold the aider and abettor responsible, an accused may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified. Contrary to Ngirabatware's submission, the Trial Chamber relied on first-hand witness testimony in referring to particular incidents of killings committed in the days following the death of President Habyarimana, and identified the physical perpetrators by reference to their membership in the Interahamwe, including some of them by name. The Trial Chamber also referred to evidence identifying individual Tutsis who were victims of the attacks. Ngirabatware fails to show that the Trial Chamber's findings in this regard were insufficient. The Appeals Chamber finds that a reasonable trier of fact could have concluded that the only reasonable inference from the evidence was that at least some of the weapons Ngirabatware distributed at the roadblocks were used to kill and cause serious bodily injury to Tutsis in Nyamyumba Commune.

150. The Appeals Chamber further recalls that "encouragement" is a form of conduct which may lead to criminal responsibility for aiding and abetting a crime. The ICTY Appeals Chamber has held that "the encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a 'silent spectator' can be construed as the tacit approval or encouragement of the crime.,, Ngirabatware points to the fact that he was not found to have been present when the attacks and killings of Tutsis were taking place. The Appeals Chamber finds Ngirabatware's argument to be misguided. It follows from the Trial Chamber's relevant finding that it did not consider Ngirabatware to be a "silent spectator" who tacitly approved and encouraged the crime by his mere presence and authority. Rather, the Trial Chamber found that the encouragement provided by Ngirabatware was explicit in that, as an influential figure in Nyamyumba Commune, he distributed weapons to the lnterahamwe while exhorting them to kill Tutsis. In such circumstances, whether Ngirabatware was present at the crime scene is inconsequential for his responsibility for aiding and abetting to arise. In view of the evidence considered and relied upon by the Trial Chamber, Ngirabatware's claim that the lnterahamwe who were manning the roadblock and committed the killings were unaware of the encouragement he provided is similarly without merit.

15l. Further, the Trial Chamber found that, at the roadblocks, Ngirabatware delivered weapons and stated that he brought them because he did not want to see any Tutsis in Nyamyumba Commune.438 Bearing in mind these acts of assistance and encouragement, Ngirabatware was present during the preparation of the crimes committed by the principal perpetrators, and thus his substantial contribution to the crimes is self-evident.

152. Accordingly, Ngirabatware's argument that the Trial Chamber erred in relation to the actus reus elements of aiding and abetting is dismissed."

Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, paras. 147, 149, 157:

"147. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime. The Appeals Chamber has explained that an individual can be found liable for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime. When this form of aiding and abetting has been a basis for a conviction, “it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it."

"149. With respect to Ndahimana’s arguments regarding the number of perpetrators involved, the Appeals Chamber notes that the Trial Chamber made no specific finding on the number of assailants on 16 April 1994, only concluding that “thousands of persons (assailants and refugees alike) were present” at Nyange Parish. Regardless of the number of assailants, the Appeals Chamber considers that the Trial Chamber was not required to establish that Ndahimana’s presence was noticed by or provided moral support to all perpetrators to find that he substantially contributed to the killings. As for Ndahimana’s argument that his assistance was not necessary as the assailants were already fully determined to commit the crimes at Nyange Church, the Appeals Chamber recalls that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required by law."

"157. The Appeals Chamber recalls that the requisite mens rea for aiding and abetting is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal perpetrator. The aider and abettor need not share the mens rea of the principal perpetrator but must be aware of the essential elements of the crime ultimately committed by the principal, including his state of mind. Specific intent crimes such as genocide require that the aider and abettor must know of the principal perpetrator’s specific intent."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 575:

"575. The physical element of aiding and abetting consists of acts or omissions “specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime […].” This support must have a substantial effect upon the perpetration of the crime. Liability for “aiding and abetting by omission proper”, which must be distinguished from aiding and abetting by tacit approval and encouragement, may only attach where an accused had both a legal duty to act and the means to fulfil this duty."

M.3.1. The perpetrator aided the commission of the crime; OR

M.3.1.1. ICC

M.3.1.2. ICTY

In Kvocka et al., the Appeals Chamber held that:

"The Appeals Chamber notes that in the Vasiljević Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting: . . . The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. . . ."[8]

"The aider and abettor assists the principal perpetrator or perpetrators in committing the crime."[9]

Concerning the definition of aiding and abetting the Limaj Trial Chamber held that:

"‘Aiding and abetting’ has been defined as the act of rendering practical assistance, encouragement or moral support, which has a substantial effect on the perpetration of a certain crime. Strictly, ‘aiding’ and ‘abetting’ are not synonymous. ‘Aiding’ involves the provision of assistance; ‘abetting’ need involve no more than encouraging, or being sympathetic to, the commission of a particular act. These forms of liability have, however, been consistently considered together in the jurisprudence of the Tribunal.’"[10]

M.3.1.3. ICTR

The Akayesu Trial Chamber held that:

"Article 6 (1) declares criminally responsible a person who ‘[…] or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 [...]’. Aiding and abetting, which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto. The issue here is to whether the individual criminal responsibility provided for in Article 6(1) is incurred only where there was aiding and abetting at the same time. The Chamber is of the opinion that either aiding or abetting alone is sufficient to render the perpetrator criminally liable. In both instances, it is not necessary for the person aiding or abetting another to commit the offence to be present during the commission of the crime."[11]

The Ntakirutimana Appeals Chamber also confirmed that:

"The elements of ‘aiding and abetting’ within the meaning of Article 6(1) are well established. In order for the Chamber to enter a conviction on this count, it must find that the following three elements have been proved beyond a reasonable doubt: (i) That Elizaphan Ntakirutimana provided to persons practical assistance (‘aiding’), or facilitated the commission of the crime by being sympathetic thereto (‘abetting’); (ii) That the act of aiding or abetting contributed substantially to the commission of the crime of genocide; and (iii) That the Accused provided such assistance or encouragement with the intent to commit genocide, that is, the intent to destroy, in whole or in part, an ethnic or racial group, as such."[12]

Concerning the concept of aiding and abetting the Semanza Trial Chamber held that:

"The terms ‘aiding’ and ‘abetting’ refer to distinct legal concepts. The term ‘aiding’ means assisting or helping another to commit a crime, and the term ‘abetting’ means encouraging, advising, or instigating the commission of a crime. However, the terms ‘aiding’ and ‘abetting’ are frequently employed together as a single broad legal concept, as is the case in this Tribunal. In the Tribunal’s jurisprudence, ‘aiding and abetting’ refers to all acts of assistance that lend encouragement or support to the commission of a crime. This encouragement or support may consist of physical acts, verbal statements, or, in some cases, mere presence as an ‘approving spectator’. Except in the case of the ‘approving spectator’, the assistance may be provided before or during the commission of the crime, and an accused need not necessarily be present at the time of the criminal act."[13]

This was confirmed by the Kajelijeli Trial Chamber:

"‘Aiding and abetting’ relate to discrete legal concepts. ‘Aiding’ signifies providing assistance to another in the commission of a crime. ‘Abetting’ signifies facilitating, encouraging, advising or instigating the commission of a crime. Legal usage, including in the Statute and case law of ICTR and ICTY, so often inter-links the two terms that they are treated as a broad singular legal concept."[14]

The Bisenginama Trial Chamber held that:

"‘Aiding’ means assisting another to commit a crime. ‘Abetting’ means facilitating, encouraging, advising or instigating the commission of a crime. In legal usage, including that of the Statute and of the case law of the Tribunal and the International Criminal Tribunal for the Former Yugoslavia (the ‘ICTY’), the two terms are so often used conjunctively that they are treated as a single broad legal concept."[15]

M.3.2. The perpetrator abetted the commission of the crime; OR

M.3.2.1. ICC

M.3.2.2. ICTY

Concerning the definition of aiding and abetting the Limaj Trial Chamber held that:

"‘Aiding and abetting’ has been defined as the act of rendering practical assistance, encouragement or moral support, which has a substantial effect on the perpetration of a certain crime. Strictly, ‘aiding’ and ‘abetting’ are not synonymous. ‘Aiding’ involves the provision of assistance; ‘abetting’ need involve no more than encouraging, or being sympathetic to, the commission of a particular act. These forms of liability have, however, been consistently considered together in the jurisprudence of the Tribunal.’"[16]

The Krnojelac Trial Chamber held that:

"Presence alone at the scene of the crime is not conclusive of aiding and abetting unless it is demonstrated to have a significant legitimising or encouraging effect on the principal offender."[17]

M.3.2.3. ICTR

The Akayesu Trial Chamber held that:

"Article 6 (1) declares criminally responsible a person who ‘(...) or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 (...)’. Aiding and abetting, which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto. The issue here is to whether the individual criminal responsibility provided for in Article 6(1) is incurred only where there was aiding and abetting at the same time. The Chamber is of the opinion that either aiding or abetting alone is sufficient to render the perpetrator criminally liable. In both instances, it is not necessary for the person aiding or abetting another to commit the offence to be present during the commission of the crime."[18]

The Ntakirutimana Appeals Chamber also confirmed that:

"The elements of ‘aiding and abetting’ within the meaning of Article 6(1) are well established. In order for the Chamber to enter a conviction on this count, it must find that the following three elements have been proved beyond a reasonable doubt: (i) That Elizaphan Ntakirutimana provided to persons practical assistance (‘aiding’), or facilitated the commission of the crime by being sympathetic thereto (‘abetting’); (ii) That the act of aiding or abetting contributed substantially to the commission of the crime of genocide; and (iii) That the Accused provided such assistance or encouragement with the intent to commit genocide, that is, the intent to destroy, in whole or in part, an ethnic or racial group, as such."[19]

Concerning the concept of aiding and abetting the Semanza Trial Chamber held that:

"The terms ‘aiding’ and ‘abetting’ refer to distinct legal concepts. The term ‘aiding’ means assisting or helping another to commit a crime, and the term ‘abetting’ means encouraging, advising, or instigating the commission of a crime. However, the terms ‘aiding’ and ‘abetting’ are frequently employed together as a single broad legal concept, as is the case in this Tribunal. In the Tribunal’s jurisprudence, ‘aiding and abetting’ refers to all acts of assistance that lend encouragement or support to the commission of a crime. This encouragement or support may consist of physical acts, verbal statements, or, in some cases, mere presence as an ‘approving spectator’. Except in the case of the ‘approving spectator’, the assistance may be provided before or during the commission of the crime, and an accused need not necessarily be present at the time of the criminal act."[20]

This was confirmed by the Kajelijeli Trial Chamber:

"‘Aiding and abetting’ relate to discrete legal concepts. ‘Aiding’ signifies providing assistance to another in the commission of a crime. ‘Abetting’ signifies facilitating, encouraging, advising or instigating the commission of a crime. Legal usage, including in the Statute and case law of ICTR and ICTY, so often inter-links the two terms that they are treated as a broad singular legal concept."[21]

The Bisenginama Trial Chamber held that:

"‘Aiding’ means assisting another to commit a crime. ‘Abetting’ means facilitating, encouraging, advising or instigating the commission of a crime. In legal usage, including that of the Statute and of the case law of the Tribunal and the International Criminal Tribunal for the Former Yugoslavia (the ‘ICTY’), the two terms are so often used conjunctively that they are treated as a single broad legal concept."[22]

 

Prosecutor v. Nikola Sainovic, Case No. IT-05-87-A, Judgement (AC), 23 January 2014, paras. 1615-1651:

"1615. The Trial Chamber found that Lazarević voluntarily provided practical assistance, encouragement, and moral support to the VJ forces involved in the forcible displacement of Kosovo Albanians in coordinated action with the MUP.⁵²⁹⁷ The Trial Chamber noted that, as the Commander of the Priština Corps, Lazarević significantly participated in the planning and execution of the joint operations conducted by the VJ and that his orders provided authorisation within the VJ chain of command for the VJ to operate in the crime sites where forcible displacement took place.⁵²⁹⁸ It also considered that “Lazarević’s presence in the field, inspecting VJ units that were involved in the commission of crimes against Kosovo Albanians, was expressly noted to improve the morale of soldiers”,⁵²⁹⁹ and that he “knew that his failure to take adequate measures to secure the proper investigation of serious crimes committed by the VJ enabled the forces to continue their campaign of terror, violence, and displacement.”⁵³⁰⁰ The Trial Chamber concluded that Lazarević’s: acts and omissions provided a substantial contribution to the commission of the crimes that the Chamber has found to have been committed by VJ members […] as they provided assistance in terms of soldiers on the ground to carry out the acts, the organisation and equipping of VJ units, and the provision of weaponry, including tanks, to assist these acts. Furthermore, Lazarević’s acts and omissions provided encouragement and moral support by granting authorisation within the VJ chain of command for the VJ to continue to operate in Kosovo, despite the occurrence of these crimes by VJ members.⁵³⁰¹"

"1616. Lazarević contends that the Trial Chamber erred in finding that, through his acts and omissions, he provided practical assistance, encouragement, and moral support to members of the VJ who were involved in the commission of deportation and forcible transfer and that his conduct had a substantial effect upon the commission of these crimes.⁵³⁰² The Appeals Chamber will address his submissions in turn."

"1617. Lazarević submits that the Trial Chamber erred in failing to determine whether his alleged acts and omissions were specifically directed to assist the commission of deportation and forcible transfer and thus in concluding that he aided and abetted these crimes.⁵³⁰³ He argues that, in accordance with the Tribunal’s prevailing jurisprudence, specific direction is a required element of the actus reus of aiding and abetting liability.⁵³⁰⁴ The Prosecution disputes this interpretation of the jurisprudence. It argues that specific direction is not an essential ingredient of the actus reus of aiding and abetting liability and that there are cogent reasons for the Appeals Chamber to depart from the recent Perišić Appeal Judgement in this regard. According to the Prosecution, the Perišić Appeal Judgement incorrectly interprets the established jurisprudence on the elements of aiding and abetting liability.⁵³⁰⁵ The Appeals Chamber, Judge Tuzmukhamedov dissenting, will address the issue of specific direction raised by the parties before turning to Lazarević’s other challenges to the Trial Chamber’s findings that he provided practical assistance, encouragement, or moral support to the VJ members responsible for committing the crimes in question.⁵³⁰⁶"

"1618. In the Perišić Appeal Judgement, the Appeals Chamber, by majority, held that “specific direction remains an element of the actus reus of aiding and abetting liability” and that “no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt”.⁵³⁰⁷ In support of this conclusion, the Appeals Chamber relied on the Tadić Appeal Judgement, which described the actus reus of aiding and abetting liability as “acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime”.⁵³⁰⁸ It observed that “many subsequent Tribunal and ICTR appeal judgements explicitly referred to ‘specific direction’ in enumerating the elements of aiding and abetting”.⁵³⁰⁹"

"1619. By contrast, in the Mrkšić and [ljivančanin Appeal Judgement, the Appeals Chamber had held that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting.”⁵³¹⁰ This holding was confirmed by the Appeals Chamber in the Lukić and Lukić Appeal Judgement, stating that “[in] Mrkšić and Šljivanćanin, the Appeals Chamber has clarified ‘that specific direction’ is not an essential ingredient of the actus reus of aiding and abetting’ and finds that there is no ‘cogent reason’ to depart from this jurisprudence.”⁵³¹¹"

"1620. The Perišić Appeal Judgement found that the Mrkšić and [ljivančanin Appeal Judgement was ambiguous⁵³¹² on the matter of specific direction and did not reflect “an intention to depart from the settled precedent established by the Tadić Appeal Judgement”.⁵³¹³ It considered that the Mrkšić and [ljivančanin Appeal Judgement merely made “passing reference to specific direction”5314 and concluded that, since the Mrkšić and [ljivančanin Appeal Judgement did not state cogent reasons for departing from earlier precedent, it neither attempted nor intended to depart from settled jurisprudence.⁵³¹⁵ The Perišić Appeal Judgement further found that the Lukić and Lukić Appeal Judgement confirmed that the Mrkšić and [ljivančanin Appeal Judgement is not antithetical in its approach to specific direction.⁵³¹⁶"

"1621. The Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that in effect, the interpretation given in the Perišić Appeal Judgement would appear to be at odds not only with a plain reading of the Mrkšić and [ljivančanin Appeal Judgement, which states that specific direction is not an “essential ingredient” of aiding and abetting liability,⁵³¹⁷ but also with the Lukić and Lukić Appeal Judgement, which confirmed this holding.⁵³¹⁸ In this respect, the Appeals Chamber considers that when interpreting a particular judgement, primary consideration should be given to positions expressly taken and clearly set out in the judgement concerned. It is not clear that this approach was adopted in the Perišić Appeal Judgement with respect to the issue of specific direction as expressed in the Mrkšić and [ljivančanin and Lukić and Lukić Appeal Judgements. It would thus be more appropriate to conclude that the Mrkšić and [ljivančanin Appeal Judgement and the Lukić and Lukić Appeal Judgement, on one hand, and the Perišić Appeal Judgement, on the other hand, diverge on the issue of specific direction."

"1622. The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.⁵³¹⁹ In view of the divergence between the Mrkšić and Sljivančanin and Lukić and Lukić Appeal Judgements, on one hand, and the Perišić Appeal Judgement, on the other hand, the Appeals Chamber, Judge Tuzmukhamedov dissenting, will determine the correct approach.⁵³²⁰ In so doing, mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases,⁵³²¹ the Appeals Chamber will consider the jurisprudence of the Tribunal and the ICTR as well as customary international law to ascertain where the law stands on the issue of specific direction."

"1623. Turning first to the jurisprudence of the Tribunal and the ICTR, the Appeals Chamber recalls that the Tadić Appeal Judgement held that an “aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime”.⁵³²² This delineation of accessorial liability appears in the context of contrasting JCE liability with that of aiding and abetting.⁵³²³ Consequently, the Tadić Appeal Judgement, which focused on JCE liability, does not purport to be a comprehensive statement of aiding and abetting liability.⁵³²⁴ The Appeals Chamber, Judge Tuzmukhamedov dissenting, therefore considers that the analysis of the previous case law conducted in the Perišić Appeal Judgement relied on the flawed premise that the Tadić Appeal Judgement established a precedent with respect to specific direction. As noted in the Perišić Appeal Judgement, subsequent appeal judgements have referred to specific direction, often repeating verbatim the language used in the Tadić Appeal Judgement.⁵³²⁵ However, a number of appeal judgements have not mentioned specific direction when examining the elements of the actus reus of aiding and abetting liability.⁵³²⁶ Moreover, the Čelebići Appeal Judgement explicitly endorsed a definition of aiding and abetting liability that neither refers to specific direction nor contains equivalent language.⁵³²⁷"

"1624. The Appeals Chamber observes that the Čelebići Appeal Judgement was not alone in its endorsement of a trial judgement that defined the actus reus of aiding and abetting liability without reference to specific direction.⁵³²⁸ The Blaškić Appeal Judgement explicitly found that the Blaškić Trial Judgement “was correct” in holding that “the actus reus of aiding and abetting ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.’” ⁵³²⁹ In so doing, the Blaškić Appeal Judgement noted that the Blaškić Trial Judgement followed the Furundžija Trial Judgement,⁵³³⁰ which pronounced this definition based on an analysis of customary international law. ⁵³³¹ Although the Blaškić Appeal Judgement also referred to the Tadić Appeal Judgement’s formulation of aiding and abetting liability, the fact that the Blaškić Appeal Judgement ultimately relied upon and applied a statement of applicable law that excluded any reference to specific direction strongly suggests that it did not consider specific direction to be an element of aiding and abetting liability.⁵³³²"

"1625. After having examined the jurisprudence of the Tribunal, the Blagojević and Jokić Appeal Judgement subsequently confirmed that specific direction is not an element of the actus reus of aiding and abetting liability. While the Blagojević and Jokić Appeal Judgement stated that “the Tadić definition has not been explicitly departed from”, it noted that “specific direction has not always been included as an element of the actus reus of aiding and abetting” and considered that “this may be explained by the fact that such a finding will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime.”⁵³³³ It thus merely observed that specific direction can be at times, though not necessarily always, factually implicit in a finding of substantial contribution. In so doing, and in light of the Čelebići and Blaškić precedents, it considered that specific direction is not an element of the actus reus of aiding and abetting, while the substantial contribution of the aider and abettor is.⁵³³⁴ Such interpretation is consonant with the fact that, prior to the Perišić Appeal Judgement, no independent specific direction requirement was applied by the Appeals Chamber to the facts of any case before it.⁵³³⁵ By contrast, the substantial contribution of the accused has consistently been an element of the actus reus of aiding and abetting liability.⁵³³⁶"

"1626. The Appeals Chamber further observes that the definition of the actus reus of aiding and abetting as “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”⁵³³⁷ reflects customary international law. As noted above, the Blaškić Appeal Judgement approved of this definition without inclusion of specific direction, noting that this standard was initially adopted in the Furundžija Trial Judgement.⁵³³⁸ The Furundžija Trial Judgement elicited this definition from an analysis of customary international law.⁵³³⁹ Nevertheless, in order to dispel any doubt in this regard, the Appeals Chamber will re-examine customary international law concerning the elements of aiding and abetting liability."

"1627. The Appeals Chamber first turns to examine the jurisprudence which dealt with crimes committed during the Second World War (collectively, “post WWII cases”) and which the Appeals Chamber considers instructive for the purpose of identifying the elements of aiding and abetting liability.⁵³⁴⁰ The Appeals Chamber observes that in none of these relevant cases “specific direction” was required as a distinct element. Rather, they focused on: (i) the degree of each defendant’s contribution to a crime, demonstrated through the role he played in, and the impact he exerted on, the commission of the crime; and (ii) whether the defendant knew that his acts contributed to the commission of the crime."

"1628. In the Zyklon B case before a British military court,⁵³⁴¹ three members of a private firm were charged with knowingly supplying poison gas, mainly “Zyklon B”, used for the extermination of allied nationals interned in concentration camps.⁵³⁴² Among the three, the owner and the second-incommand of the firm were found guilty, following the Judge Advocate’s instruction that the court must examine: (i) whether “[a]llied nationals had been gassed by means of Zyklon B”; (ii) whether “this gas had been supplied by [the firm]; and (iii) whether “the accused knew that the gas was to be used for the purpose of killing human beings.”⁵³⁴³ The firm’s first gassing technician, who was in a subordinate position, was acquitted, following the Judge Advocate’s instruction that the court must consider whether he “was in a position either to influence the transfer of gas to Auschwitz or to prevent it.”⁵³⁴⁴ The analysis therefore focused on whether each defendant had influence over the supply of the gas and knew of the unlawful use of the gas despite the stated lawful purposes, such as disinfecting buildings.⁵³⁴⁵ Whether the defendants specifically directed the supply of the gas to the extermination was not a basis for the convictions. ⁵³⁴⁶"

"1629. In the Schonfeld case heard by a British military court,⁵³⁴⁷ four defendants were found guilty of being “concerned in the killing of” three airmen of the allied forces.⁵³⁴⁸ In light of the factual circumstances in this case, the Judge Advocate provided, inter alia, an overview of aiding and abetting liability in English law, noting that a party is an aider and abettor if he is “actually or constructively present when the felony is committed” ⁵³⁴⁹ and that there must be “participation in the act” although it is not necessary to prove that he “actually aided in the commission of the offence”.⁵³⁵⁰ The Judge Advocate further explained: [I]f [a party] watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favour their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, he was, in contemplation of law, present, aiding and abetting.⁵³⁵¹ These examples mentioned by the Judge Advocate suggest that the accused’s presence in the vicinity (moral encouragement as opposed to tangible support) could constitute the actus reus of aiding and abetting liability if it has the effect of giving additional confidence to the principal perpetrator, and that the purpose of the accused’s act, together with the principal perpetrator’s knowledge thereof, could be considered as potentially relevant evidence in this evaluation.⁵³⁵²"

"1630. In the Rohde case heard by a British military court,⁵³⁵³ six defendants were found guilty of being “concerned in the killing of” British prisoners who were executed by lethal injection without any trial and then cremated. The convicted included the person who lit the oven at the crematorium after the killing.⁵³⁵⁴ The Judge Advocate explained that for an accused to be “concerned in a killing” it was not necessary that he must have actually been present.⁵³⁵⁵ The Judge Advocate further stated that if a lookout standing half a mile away from the actual murder took part with another “man with the knowledge that that other man was going to put the killing into effect then he was just as guilty as the person who fired the shot or delivered the blow.”⁵³⁵⁶ Thus, the convictions were based on each accused’s contribution demonstrated through his role – including in carrying out ex post facto cremation – and knowledge of the crime, i.e. the unlawful killing.⁵³⁵⁷"

"1631. In the Stalag Luft III case heard by a British military court,⁵³⁵⁸ 18 defendants were convicted of “being concerned in the killing” of British prisoners of war, who were unlawfully executed by shooting.⁵³⁵⁹ In light of the factual circumstances in this case, the Judge Advocate stated that “if people are all present, aiding and abetting one another to carry out a crime they knew was going to be committed, they are taking their respective parts in carrying it out, whether it be to shoot or whether it is to keep off other people or act as an escort […], they are all in law equally guilty of committing that offence”.⁵³⁶⁰ In explaining the term “concerned in the killing”, he further stated: I do not think that the prosecution can ask you to consider a case of a minor official who was concerned with some administrative matter. What they had in mind is that the persons concerned must have been part of the machine doing some duty, carrying out some performance which went on directly to achieve the killing, that it had some real bearing on the killing, would not have been so effective or been done so expeditiously if that person had not contributed his willing aid. ⁵³⁶¹ This suggests that, in addition to the knowledge of a defendant, the important question to be asked was whether the concerned act “had some real bearing on the killing”, i.e. had a substantial effect on the killing, and that this is what the Judge Advocate meant when he used the expression “performance which went on directly to achieve the killing”. This observation is further supported by the court’s focus on: (i) what part each defendant played in the shooting of the prisoners, which showed the degree of his contribution to the commission of the crimes; and (ii) whether it was a knowing participation.⁵³⁶²"

"1632. In the Holstein and Wagner cases before French military tribunals,⁵³⁶³ the accused who were found guilty as accomplices were considered to fall within one of the following two categories pursuant to Article 60 of the then French Penal Code: (i) “₣tğhose who have furnished arms, instruments or any other means which have served in the action ₣constituting a crime or delictğ knowing that they would serve this purpose”; and (ii) “₣tğhose who knowingly aided or assisted the perpetrator or perpetrators of the action in the facts which have prepared or facilitated or in those which have consumated [sic] the action”.⁵³⁶⁴ The record does not indicate that the tribunals additionally examined whether the accused specifically directed their acts to the crimes.⁵³⁶⁵"

"1633. In the Pig-cart parade case heard by the German supreme court in the British occupied zone,⁵³⁶⁶ the accused L, G, and S were found guilty of a crime against humanity under Control Council Law No. 10⁵³⁶⁷ for having participated in a parade in which two political opponents of the Nazi party were exposed to public humiliation in a pig truck. The accused P was acquitted.⁵³⁶⁸ The court found that L, G, and S caused in part what the two victims suffered: (i) L got hold of the pig truck; (ii) G led the marching band and accompanied the demonstration; and (iii) S accompanied the pig truck wearing his uniform and carrying a rifle.⁵³⁶⁹ It found that the three accused were old Nazi officials and that it was inconceivable that they were not at least aware of the risk of people being assaulted by a system of violence and injustice and accepted such an outcome by reconciling themselves with it (dolus eventualis). The court also held that more is not required in respect of the mental elements.⁵³⁷⁰ Regarding the accused P, the court found that he followed the parade merely as spectator in civilian clothes. It found that, accordingly, it was neither proved that he became part of the cause nor that he possessed the mens rea meeting the standard of dolus eventualis. ⁵³⁷¹ Therefore, the convictions and acquittal were based on whether the defendants contributed to the commission of the crime and whether the mens rea met the dolus eventualis standard.⁵³⁷²"

"1634. In the Roechling case,⁵³⁷³ dealt with by French military tribunals under Control Council Law No. 10, Hermann Roechling, General Director of his family-owned steel firm, was found guilty of having committed war crimes involving economic spoliation of the occupied countries.⁵³⁷⁴ Ernst Roechling, who acted as the firm’s representative in France, was found guilty as an accessory to these actions by Hermann Roechling. In its analysis the appellate tribunal focused on the importance of Ernst Roechling’s role in the economic plunder and spoliation in France as well as his knowledge of the significance of his own role and of Hermann Roechling’s activities. As a result, it overturned Ernst Roechling’s acquittal entered by the tribunal of first instance.⁵³⁷⁵ In addition, the appellate tribunal upheld the convictions of two members of the Directorate of the firm⁵³⁷⁶ as “coauthors or accomplices” to Hermann Roechling’s acts in relation to the deportation and employment of persons and prisoners of war and the ill-treatment inflicted upon them.⁵³⁷⁷ In reaching these conclusions, the appellate tribunal held: Hermann Roechling and the other accused members of the Directorate of the [firm] are not accused of having ordered this horrible treatment, but of having permitted it; and indeed supported it, and in addition, of not having done their utmost to put an end to these abuses. In adopting this attitude they permitted the continued existence and further development of this inhuman situation and thus, particularly through this tolerance, participated in the maltreatment within the meaning of Law No. 10.⁵³⁷⁸ The appellate tribunal’s analysis thereby focused on the positions and powers of the abovementioned three defendants which provided them with sufficient authority to intervene and improve the treatment of the deported workers who were subject to the terrible conditions that were known or must have been known to these defendants.⁵³⁷⁹ Accordingly, the Appeals Chamber observes that, in the Roechling case, the essential consideration in determining accessorial or accomplice liability was the impact that each defendant could exert on the principal’s offences as well as their awareness thereof."

"1635. Applying Control Council Law No. 10, the US military tribunals in Nuremberg also similarly focused on: (i) the degree of each defendant’s contribution to the commission of the crimes, evinced through the part each defendant played and the effect of his conduct on the crimes; and (ii) the knowledge that each defendant had."

"1636. For instance, in the Einsatzgruppen case,⁵³⁸⁰ the tribunal acquitted defendant Ruehl, a member of a Sonderkommando of Einsatzgruppe D, of war crimes and crimes against humanity finding that, while he “had knowledge of some of the illegal operations of” this Sonderkommando,⁵³⁸¹ he did not take part in any “executive operation nor did his low rank place him automatically into a position where his lack of objection in any way contributed to the success of any executive operation.”⁵³⁸² Additionally, in relation to defendant Graf, a member of Einsatzkommando 6, the tribunal held that while he knew of some of the executions, “more than mere knowledge of illegality of crime is required in order to establish guilt”.⁵³⁸³ The tribunal further opined that “[s]ince there is no evidence in the record that Graf was at any time in a position to protest against the illegal actions of others, he cannot be found guilty as an accessory [to crimes against humanity and war crimes].”⁵³⁸⁴ In contrast, with respect to defendant Klingelhoefer, who was in charge of various units and later an interpreter with Einsatzgruppe B, the tribunal held that, even if his functions had been limited to that of an interpreter, “it would not exonerate him from guilt because in locating, evaluating and turning over lists of Communist party functionaries to the executive department of his organization he was aware that the people listed would be executed when found” and that, “[i]n this function, therefore, he served as an accessory to the crime.”⁵³⁸⁵ The tribunal also convicted defendant Fendler, who served in Einsatzgruppe C and was not alleged to have personally conducted executions.⁵³⁸⁶ The tribunal found that he knew that executions were taking place and failed to do anything about it, although as the second highest ranking officer in the Kommando his views could have been heard.⁵³⁸⁷"

"1637. As the Furund`ija trial chamber observed, the above findings in the Einsatzgruppen case indicate that “knowledge of the criminal activities of the organisation combined with a role in that organisation was not sufficient”.⁵³⁸⁸ Rather, in addition, “the defendants’ acts in carrying out their duties had to have a substantial effect on the commission of the offence for responsibility to ensue.”⁵³⁸⁹ The Appeals Chamber concurs with this observation."

"1638. The Flick case⁵³⁹⁰ further supports this conclusion. In this case, the tribunal found defendants Flick and Steinbrinck guilty of contributing large sums to the financing of the SS.⁵³⁹¹ In reaching this conclusion, the tribunal first opined that: One who knowingly by his influence and money contributes to the support [of an organisation which on a large scale is responsible for war crimes and crimes against humanity] must, under settled legal principles, be deemed to be, if not a principal, certainly an accessory to such crimes.⁵³⁹²"

"1639. The tribunal found that Steinbrinck could not have remained wholly ignorant of the criminal activities of the SS under the administration of Himmler.⁵³⁹³ It further found that Flick and Steinbrinck became members of the Himmler Circle of Friends⁵³⁹⁴ and that members of the Circle were called upon to contribute money to Himmler and were informed that the money was “to be spent for some of [Himmler’s] cultural hobbies and for emergencies for which he had no appropriations.”⁵³⁹⁵ Flick and Steinbrinck each had to contribute annually 100,000 Reichsmarks and, through a special fund of a bank, this money went into a second bank account upon which Himmler’s personal adjutant drew checks. The tribunal held that none of the defendants knew of the “specific purpose” of the checks.⁵³⁹⁶ It further held: Nor did the prosecution show that any part of the money was directly used for the criminal activities of the SS. It is reasonably clear that some of the funds were used purely for cultural purposes. But during the war and particularly after the beginning of the Russian campaign we cannot believe that there was much cultural activity in Germany. A hundred thousand Reichsmarks even to a wealthy man was not then a trifling but a substantial contribution. Ten times that sum annually was placed in the hands of Himmler, the Reich Leader SS, for his personal use and was continued year after year without a thought on [the part of the defendants], according to their testimony, that any portion of it might be used by him to maintain the organization of which he was the head. It is a strain upon credulity to believe that he needed or spent annually a million Reichsmarks solely for cultural purposes or that members of the Circle could reasonably believe that he did. […] It remains clear from the evidence that each of them gave to Himmler, the Reich Leader SS, a blank check. His criminal organization was maintained and we have no doubt that some of this money went to its maintenance. It seems to be immaterial whether it was spent on salaries or for lethal gas.⁵³⁹⁷"

"1640. The convictions were therefore based on the defendants’ substantial contribution to and knowledge of criminal activities. It was not additionally required that the contribution be specifically directed to criminal activities."

"1641. This approach was also taken in the Justice case. ⁵³⁹⁸ The tribunal found that defendant Rothenberger, president of the District Court of Appeals in Hamburg and later Under Secretary in the Ministry of Justice, was “instrumental” in denying Jews their fair trial rights.⁵³⁹⁹ The tribunal found that, while this appeared to be a “small matter compared to the extermination of Jews by the millions under other procedures”, it was “nevertheless a part of the government-organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.”⁵⁴⁰⁰ The tribunal further found that Rothenberger must have known that the inmates of the Mauthausen concentration camp were there either without trial, following acquittal, or after the expiration of their term of imprisonment.⁵⁴⁰¹ Thus he was aware of the system of “protective custody”⁵⁴⁰² but did not object to it. The tribunal found Rothenberger guilty of: taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and pervasion of the judicial system. ⁵⁴⁰³"

"1642. The Appeals Chamber further observes that, with regard to other defendants in the Justice case ⁵⁴⁰⁴ as well as in other cases heard by the US military tribunals under Control Council Law No. 10,⁵⁴⁰⁵ “specific direction” was not required as an element of any form of accessorial liability. The same holds true in the findings of the International Military Tribunal.⁵⁴⁰⁶ The criteria employed in these cases were rather whether the defendants substantially and knowingly contributed to relevant crimes."

"1643. The Appeals Chamber now turns to national law on the elements of aiding and abetting liability. At the outset, the Appeals Chamber recalls that under the doctrine of general principles of law recognised by nations, national legislation and case law may be relied upon as a source of international principles or rules in limited situations. Such reliance, however, is permissible only where it is shown that most, if not all, countries accept and adopt the same approach to the notion at issue.⁵⁴⁰⁷ More specifically, it would be necessary to show that the major legal systems of the world take the same approach to that notion.⁵⁴⁰⁸"

"1644. Having conducted a review of national law, the Appeals Chamber considers that this is not the case with respect to the notion of “specific direction”. 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. As a common basis, for aiding and abetting liability to arise, national legislation and the jurisprudence of domestic courts require the provision of assistance or support which facilitates the commission of a crime. However, national jurisdictions conceptualise the link between the acts of assistance and the crime in the context of actus reus and the required degree of mens rea in various different ways in accordance with principles in their respective legal systems.⁵⁴⁰⁹"

"1645. For instance, in some civil law countries, such as France,⁵⁴¹⁰ Belgium,⁵⁴¹¹ and Algeria,⁵⁴¹² it is required that the aider or abettor provided assistance to the principal perpetrator and thereby facilitated the commission of the crime by that principal perpetrator, with the awareness that his act would provide assistance to the commission of the crime. In other countries of civil law tradition, such as Germany,⁵⁴¹³ Bulgaria,⁵⁴¹⁴ China,⁵⁴¹⁵ and Japan,⁵⁴¹⁶ it is required that the aider and abettor, by providing assistance, facilitated the commission of the crime by the principal perpetrator. In addition, it must be established that he did so with the dolus, which is often translated in English as “intent” and encompasses either purpose, knowledge with certainty (dolus directus), or the awareness and acceptance of the likelihood that the crime could be committed and that his act could facilitate the commission of the crime (dolus eventualis). Dolus eventualis is the minimum requirement. In some common law countries, such as Australia and Canada, the aider and abettor must have both intent and knowledge, while the required amount of assistance in order for liability to arise, for the most part, is relatively low.⁵⁴¹⁷ In contrast, while English law also requires both intent and knowledge, the aider and abettor must make an essential contribution to the commission of the crime.⁵⁴¹⁸ As to the United States, while there is a Model Penal Code, its approach to accomplice liability is not uniformly adopted throughout the country. Consequently, states vary with respect to the applicable theories of accomplice liability, especially in relation to the relevant mens rea standard.⁵⁴¹⁹ In Iran, the Islamic Penal Code requires that the accessory commit a positive act by which he knowingly and intentionally facilitates the commission of the crime.⁵⁴²⁰"

"1646. The survey of the above mentioned countries suffices for the Appeals Chamber to discern that requiring “specific direction” for aiding and abetting liability is not a general, uniform practice in national jurisdictions."

"1647. Finally, the Appeals Chamber briefly examines international instruments. The Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission (“ILC”) in 1996 (“ILC Draft Code”) is not binding, but “is an authoritative instrument, parts of which may constitute evidence of customary international law, clarify customary rules, or, at the very least, ‘be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world.’” ⁵⁴²¹ Article 2(3)(d) of the ILC Draft Code provides that “[a]n individual shall be responsible for a crime set out in [the ILC Draft Code] if that individual […]knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission.”⁵⁴²² Regarding the actus reus requirement, the Commentary of the ILC explains that, for aiding and abetting liability to arise, an individual must “provide the kind of assistance which contributes directly and substantially to the commission of the crime.”⁵⁴²³ The Commentary further notes that “[t]hus, the form of participation of an accomplice must entail assistance which facilitates the commission of a crime in some significant way.”⁵⁴²⁴ As correctly noted in the Furundžija Trial Judgement, this conforms with the post WWII cases which demonstrate that “the relationship between the acts of the accomplice and of the principal must be such that the acts of the accomplice make a significant difference to the commission of the criminal act by the principal.”⁵⁴²⁵"

"1648. Article 25(3)(c) of the ICC Statute, adopted in 1998, provides that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person […] [f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”. The phrase “directly and substantially” in the ILC Draft Code is not included in this provision, while the phrase “[f]or the purpose of facilitating the commission of such a crime” has been added. This has led some scholars to consider that, compared to the ILC Draft Code, the ICC Statute may have lowered the threshold of the actus reus requirement,⁵⁴²⁶ while apparently adopting a higher mens rea standard.⁵⁴²⁷ However, how the chambers of the International Criminal Court (“ICC”) interpret Article 25(3)(c) of the ICC Statute and define the elements of the mode of liability under this article remains to be seen. Moreover, while the ICC Statute may be in many areas regarded as indicative of customary rules, in some areas it creates new law or modifies existing law.⁵⁴²⁸ The adoption of an international treaty, by itself, does not necessarily prove that states consider the content of that treaty to express customary international law.⁵⁴²⁹"

"1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furund`ija Trial Judgement and confirmed by the Blaškić Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”⁵⁴³⁰ The required mens rea is “the knowledge that these acts assist the commission of the offense”.⁵⁴³¹ The Appeals Chamber reaffirms the position taken by the Blaškić Appeal Judgement in this regard."

"1650. Accordingly, the Appeals Chamber confirms that the Mrkšić and Šljivanćanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,⁵⁴³² accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.⁵⁴³³ Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perišić 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.⁵⁴³⁴"

 

"1651. In light of the foregoing, the Appeals Chamber finds that in assessing the actus reus of aiding and abetting, the Trial Chamber was not required to determine whether Lazarević’s acts were specifically directed to assist, encourage or lend moral support to the commission of the crimes by the VJ and thus dismisses Lazarević’s arguments to the contrary."

M.3.3. The perpetrator otherwise assisted in the commission of the crime, including providing the means for its commission

M.3.3.1. ICC

M.3.3.2. ICTY

M.3.3.3. ICTR

The Bisenginama Trial Chamber held that:

"Mere presence at the crime scene may constitute aiding and abetting where it is demonstrated to have a significant encouraging effect on the principal offender, particularly if the individual standing by was the superior of the principal offender or was otherwise in a position of authority. In those circumstances, an omission may constitute the actus reus of aiding and abetting, provided that this failure to act had a decisive effect on the commission of the crime."[23]

The Muvunyi Trial Chamber held that:

"Liability for aiding and abetting can also be incurred by way of omission such as the case of the so-called ‘approving spectator’ where a person in a position of authority is present either at the scene of the crime or within its immediate vicinity, under circumstances where his presence leads the perpetrators to believe that he approved, encouraged or was giving moral support to their actions"[24]

Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, paras. 372-373:

"372. The Appeals Chamber is not persuaded that the Trial Chamber failed to provide a reasoned opinion in respect of its conclusion that Sagahutu incurred liability for aiding and abetting. In the legal findings section of the Trial Judgement, the Trial Chamber found that Sagahutu instructed Corporals Nzeyimana and Masonga to put down the Belgian peacekeepers’ resistance and allowed them to take an MGL from his office in order to participate in the attack.899 These findings were sufficient to establish the actus reus and mens rea for aiding and abetting. As discussed in detail above, the evidence shows that the Trial Chamber reasonably interpreted Sagahutu’s instruction to Corporal Nzeyimana as an order to kill the last of the Belgian peacekeepers and for this purpose allowed the corporal to take an MGL from his office.900 For this reason, Sagahutu’s assertion that his mens rea was not established has no merit."

"373. The Appeals Chamber is also not persuaded that the substantial effect of Sagahutu’s contribution was called into question by the fact that there is no evidence that any peacekeeper died from injuries inflicted by the MGL that Sagahutu provided. As previously held, the assistance of an aider and abettor need not serve as a condition precedent for the crime. Moreover, the overall reasoning in the Trial Judgement indicates that Sagahutu was held responsible because he assisted the attack against the Belgian peacekeepers by providing one of the weapons used and not because someone was killed with this particular weapon. To this end, it was irrelevant whether any Belgian peacekeeper died by means of the MGL."