M.1. A crime within the jurisdiction of Court was attempted or committed by a person or persons other than the perpetrator, with or without the participation of the perpetrator

M.1.1. A Principle crime was committed or attempted

M.1.2. A principle crime was committed by a person or persons other than the perpetrator.

M.1. A crime within the jurisdiction of Court was attempted or committed by a person or persons other than the perpetrator, with or without the participation of the perpetrator

M.1.1. A Principle crime was committed or attempted

M.1.1.1. ICC

There were no judgments rendered on this issue yet.

M.1.1.2. ICTY

Citing the commentary notes to the I.L.C: Draft Code (I.L.C. Draft Code, 24) the Tadić Trial Chamber held that:

"The Trial Chamber finds that aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present. Under this theory, presence alone is not sufficient if it is an ignorant or unwilling presence. However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it"[1]

In the Aleksovski Trial Judgment it was held that:

"It is unnecessary to prove that a cause-effect relationship existed between participation and the commission of the crime. The act of participation need merely have significantly facilitated the perpetration of the crime."[2]

The Mucić et al. Trial Chamber held that:

"The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have ‘a direct and substantial effect on the commission of the illegal act’." "[3]

It was also confirmed by the Krstić Trial Chamber:

"‘Aiding and abetting’ means rendering a substantial contribution to the commission of a crime."[4]

And by the Blaškić Appeals Chamber:

"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. […] 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."[5]

It was also confirmed by the Limaj Trial Chamber:

"The actus reus of aiding and abetting is that the support, encouragement or assistance of the aider and abettor has a substantial effect upon the perpetration of the crime. There is no requirement of a causal relationship between the conduct of the aider or abettor and the commission of the crime, or proof that such conduct was a condition precedent to the commission of the crime."[6]

M.1.1.3. ICTR

The Kayishema and Ruzindana Trial Chamber held that:

"The Trial Chamber is of the opinion that, as was submitted by the Prosecution, there is a further two stage test which must be satisfied in order to establish individual criminal responsibility under Article 6 (1). This test required the demonstration of (i) participation, that is that the accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent, that is awareness by the actor of his participation in a crime."[7]

The Kayishema and Ruzindana Appeals Chamber confirmed that:

"The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have a direct and substantial effect on the commission of the illegal act."[8]

The Bagilishema Trial Chamber held that:

"For an accomplice to be found responsible for a crime under the Statute, he or she must assist the commission of the crime; the assistance must have a substantial effect on the commission of the crime. The Chamber, however, agrees with the view expressed in Furundzija, that the assistance given by the accomplice need not constitute an indispensable element, i.e. a conditio sine qua non, of the acts of the perpetrator. Further, the participation in the commission of a crime does not require actual physical presence or physical assistance. Mere encouragement or moral support by an aider and abettor may amount to ‘assistance’. The accomplice need only be ‘concerned with the killing’. The assistance need not be provided at the same time that the offence is committed."[9]

M.1.1.4. SCSL

In the Taylor case, the Appeals Chamber held that:

"The Appeals Chamber finds that Article 6(1) establishes individual criminal liability in terms of the accused’s relationship to the crime, not to the physical actor. The five forms of criminal participation in Article 6(1) - including commission - are set forth independently and defined in relation to the crime. As the plain language of Article 6(1) provides, those who plan, instigate, order, commit or otherwise aid and abet the crime are equally liable for the crime on the basis of their own acts. While the Defence submits that the inquiry is whether the aider and abettor assisted the particular physical actor who committed the crime, Article 6(1) does not refer to or in any way describe personal culpability for "planning, instigating, ordering, committing or otherwise aiding and abetting" in relation to another person, whether the "principal", "perpetrator" or "physical actor". In contrast, Article 6(3) clearly establishes individual liability deriving from the criminal acts of another person, the subordinate, under certain circumstances. The differences between these statutory provisions, which effectively place Article 6(1) in context, confirm the plain language of Article 6(1).

In addition, Article 6(1) establishes individual criminal liability for those who otherwise aid and abet in the "planning, preparation or execution of a crime." In accordance with its plain language, aiding and abetting liability may thus be established where the accused participates in any or all stages of the crime. This is consistent with the object and purpose of Article 6(1), as it ensures personal culpability for all those who plan, instigate, order, commit or otherwise aid and abet crimes, whatever the particular manner and stage in which they participate in the crime. The Defence submission that an aider and abettor’s assistance must be used by the physical actor in the commission of the specific crime is thus contrary to the Statute. The plain language of Article 6(1) and the object and purpose of the Statute ensure accountability for those who participate in the commission of crimes, in whatever manner and at whatever stage." [10]

M.1.2. A principle crime was committed by a person or persons other than the perpetrator.

M.1.2.1. ICC

M.1.2.2. ICTY

M.1.2.3. ICTR

The Musema Trial Chamber held that:

"In regard to the issue of whether a person can be prosecuted for complicity, even where the perpetrator of the principal offence has himself not been tried, the Chamber notes that all criminal systems provide that a person may very well be tried as an accomplice, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, the latter’s guilt can not be proven."[11]

The Bisenginama Trial Chamber held that:

"Aiding and abetting is a form of accessory liability. The actus reus of the crime is not performed by the accused but by another person referred to as the principal offender. The accused’s participation may take place at the planning, preparation or execution stage of the crime and may take the form of a positive act or omission, occurring before or after the act of the principal offender. (…) While the assistance need not be indispensable to the crime, it must have a substantial effect on the commission of the crime."[12]

M.1.2.4. SCSL

In the Taylor case, the Appeals Chamber held that:

"The Appeals Chamber also notes that the jurisprudence demonstrates that accused can be found liable for aiding and abetting crimes that other accused are found liable for under joint criminal enterprise. As a matter of law and fact, aiding and abetting convictions can co-exist with findings that a plurality of persons shared a common criminal purpose that embraced the same crimes that an accused aided and abetted. In cases such as Krstić, Blagojević and Jokić and Simić et al. , the accused were specifically found not to share the common criminal purpose and not to be - members of the joint criminal enterprise, but were still convicted of aiding and abetting crimes that were committed in furtherance of the joint criminal enterprise. In the Ministries Case, the accused were acquitted, on the merits, of common purpose liability for the commission of crimes against humanity and war crimes. The accused in the Hostage Case were also found on the merits not to have participated in a preconceived plan. In the Justice Case, the Tribunal did not find that the accused shared a common purpose with one another or with the originators of the program of racial persecution. The accused were only convicted for the crimes on which their acts and conduct had a substantial effect, not simply all crimes committed pursuant to the common purpose. In comparison, common purpose liability was clearly charged and found in other cases."[13]