Table of contents:
Element:
M.2. The perpetrator had the purpose of facilitating the commission of the crime.
A. Evidentiary comment:
According to ICTY jurisprudence, it is sufficient for the suspect to have knowledge of the "essential elements" of the crime committed by the perpetrator, and that the suspect knows that his or her actions would assist the perpetrator in the commission of the crime. There is no requirement that the suspect share the same mental state requirement as the perpetrator. However, the legal requirements for aiding and abetting in the Rome Statute differ somewhat from the ICTY in this regard. In contrast to article 7(1) of the ICTY Statute and article 6(1) of the ICTR Statute, the Rome Statute requires the purpose of facilitating the commission of the crime and therefore follows a stricter approach than the ad hoc tribunals. This purpose requirement was taken from the US Model Penal Code; the necessity of its inclusion was quite controversial as it ignores the already mentioned jurisprudence of the ICTY and ICTR establishing that complicity only requires knowledge. "Purpose" generally implies a specific subjective requirement stricter than mere knowledge. (Ambos, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 25, para. 19.) Thus, with regard to the facilitating of the commission of the crime the accomplice must act with purpose, i.e. he has to know and wish that his or her assistance will facilitate the commission of the crime. (Eser in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, vol. I, p. 801). A person who is assisting the commission of a crime out of fear or the hope that the crime will fail will therefore not be criminally responsible, even if he or she is aware there is a substantial possibility that the crime will be carried out successfully.
Complicity by way of aiding, abetting, or otherwise assisting thus requires two different forms of mens rea: a) with regard to facilitating the commission of the crime, the aider, abettor or assistant must act with purpose; and b) with regard to all other elements of the crime, article 30 applies.
