M.5. The accused was aware of the factual circumstances enabling him to facilitate the commission of the crime

M.5. The accused was aware of the factual circumstances enabling him to facilitate the commission of the crime

The Muvunyi Trial Chamber held that:

"The mens rea required for liability as an approving spectator is knowledge on the part of the Accused that the perpetrators would see his presence as approval or encouragement."[1]

The Seromba Trial Chamber held that:

"The requisite mens rea in the more specific case of the ‘approving spectator’ is for the accused to know that his presence would be seen by the perpetrator of the crime as encouragement or support. The mens rea of the approving spectator may be deduced from the circumstances, and may include prior concomitant behaviour, for instance allowing crimes to go unpunished or providing verbal encouragement to commit such crimes."[2]

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, para. 1751:

"1751. The Appeals Chamber is of the view that Pandurević is misguided in his interpretation of the relevant finding in the Haradinaj et al. Appeal Judgement.⁴⁹⁴⁴ The aider and abettor must be aware of the “essential elements” of the crime(s) committed by the principal offender, including his or her state of mind.⁴⁹⁴⁵ The requisite mens rea can be established if the aider and abettor is not certain which of a number of crimes will ultimately be committed as long as the aider and abettor is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed.⁴⁹⁴⁶ The Appeals Chamber in the Blagojević and Jokić case did not disapprove this statement when it held that the Blaškić Appeal Judgement did not extend the definition of the mens rea of aiding and abetting.⁴⁹⁴⁷ Thus, Pandurević is misguided when he asserts that the awareness of a probability standard is directed to the range of possible crimes for which the accused may be liable “once he or she knows that at least one crime will be committed”.⁴⁹⁴⁸ Consequently, Pandurević has failed to demonstrate that the Trial Chamber erred."

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. Moreover, the aider and abettor must have known that these acts had contributed to the perpetration of the crime and been aware of the essential elements of the crime, including of the intent of the principal perpetrator, without necessarily knowing the exact crime that was intended or committed.

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. 577:

"577. The requisite mental element for aiding and abetting is “knowledge that the acts performed by the aider and abettor assist the commission of a specific crime”. The aider and abettor must be aware of the essential elements of the crime which was ultimately committed, including the perpetrators’ state of mind and any relevant specific intent, although he need not share that specific intent. Moreover, an accused may be convicted for having aided and abetted a crime, including one which requires specific intent, even where the specific individuals who committed the crime have not been tried or identified. If an accused is aware that one or more crimes would probably be committed, and one of these crimes is in fact committed, he is deemed to have intended the facilitation of the commission of that crime and is guilty as an aider and abettor."