M.4. The Perpetrator intended to aid, abet or otherwise assist the commission or attempt of the crime

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

 

353. […] 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.

                                                               

M.4.1. ICTR

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

"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." [86]

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. 1955:

"1955. 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” and the mens rea is “the knowledge that these acts assist the commission of the offense". The Appeals Chamber has further 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."

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."

M.4.1. The perpetrator meant to engage in the conduct;

M.4.1.1. ICC

M.4.1.2. ICTY

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

"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." [1]

Referring to the Trial Chamber II the Aleksovski Trial Chamber held that:

"The accused must also have participated in the illegal act in full knowledge of what he was doing. This intent was defined by Trial Chamber II as ‘awareness of the act of participation coupled with a conscious decision to participate.’"[2]

M.4.1.3. 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."[3]

M.4.2. The perpetrator meant to cause the consequence of crime; OR

M.4.2.1. ICC

M.4.2.2. ICTY

The Aleksovski Appeals Chamber held that:

"It must be shown that the aider and abettor knew (in the sense of was aware) that his own acts assisted in the commission of that crime by the principal. The Trial Chamber had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal. It is clear that what must be shown is that the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal."[4]

The Krnojelac Trial Chamber held that:

"The mens rea of aiding and abetting requires that the aider and abettor knew (in the sense that he was aware) that his own acts assisted in the commission of the specific crime in question by the principal offender. The aider and abettor must be aware of the essential elements of the crime committed by the principal offender, including the principal offender’s mens rea. However, the aider and abettor need not share the mens rea of the principal offender"[5]

The Kvočka et al. Appeals Chamber held that:

"Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator."[6]

M.4.2.3. ICTR

The Kayishema and Ruzindana Appeals Chamber confirmed the judgement of the Semanza Trial Chamber concerning the mens rea of aiding and abetting:

"The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act."[7]

In the Kamuhanda judgement it was held that:

"For purposes of accomplice liability, the mens rea requirement will be fulfilled where an individual acts with the knowledge that his or her act(s) assist in the commission of the crime by the actual perpetrator(s). While the accused need not know the precise offence being committed by the actual perpetrator(s), the accused must be aware of the essential elements of the crime, and must be seen to have acted with awareness that he or she thereby supported the commission of the crime."[8]

Later on the Seromba Appels Chamber held that:

"The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator. In particular, as correctly outlined by the Trial Chamber, in cases of crimes requiring specific intent, such as genocide, it is not necessary to prove that the aider and abettor shared the mens rea of the principal, but that he must have known of the principal perpetrator’s specific intent."[9]

Concerning genocide the Ntakirutimana and Ntakirutimana Appeals Chamber held that:

"The requisite mens rea for aiding and abetting genocide is the accomplice’s knowledge of the genocidal intent of the principal perpetrators"[10]

In the same judgement it was held that:

"The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime"[11]

M.4.2.4. SCSL

In the Taylor case, the Appeals Chamber held that:

"The Appeals Chamber’s review of the post-Second World War jurisprudence demonstrates that under customary international law, an accused’s knowledge of the consequence of his acts or conduct - that is, an accused’s "knowing participation" in the crimes - is a culpable mens rea standard for individual criminal liability. Similarly, the post-Second World War jurisprudence was found in early ICTY Judgments other than Furundžija to establish that under customary international law, "awareness of the act of participation coupled with a conscious decision to participate" in the commission of a crime entails individual criminal responsibility. The 1996 ILC Draft Code supports this conclusion, and Article 25(3)(c) of the Rome Statute is not evidence of state practice to the contrary. Whether this standard is termed "knowledge", "general intent", "dol special", "dolo diretto" or "dolus directus in the second degree", the concept is the same."[77]

"The law requires that an accused must be aware, inter alia, of the consequence of his conduct, the essential elements of the crime, the concrete factual circumstances and the criminal intent, and it requires concrete knowledge or awareness on the part of the accused, not just an abstract awareness that crimes will be committed in the course of any armed conflict. The specifics of this awareness will depend on the factual circumstances of each particular case." [12]

"The Appeals Chamber’s review of the post-Second World War jurisprudence and subsequent caselaw demonstrates that under customary international law, an accused’s knowledge of the consequence of his acts or conduct - that is, an accused’s "knowing participation" in the crimes - is a culpable mens rea standard for individual criminal liability. In light of the foregoing, the Appeals Chamber reaffirms that knowledge is a culpable mens rea standard for aiding and abetting liability under Article 6(1) of the Statute and customary international law."[13]

M.4.3. The perpetrator was aware that the consequence will occur in the ordinary course of events

M.4.3.1. ICC

M.4.3.2. ICTY

The Strugar Trial Chamber held that:

"Regarding the requisite mens rea, it must be established that the aider and abettor was aware that his acts were assisting in the commission of the crime by the principal. This awareness need not have been explicitly expressed, but it may be inferred from all relevant circumstances. While the aider and abettor need not share the mens rea of the principal, he must be aware of the essential elements of the crime ultimately committed by the principal. It is not necessary that the aider and abettor know the precise crime that was intended or actually committed, as long as he was aware that one or a number of crimes would probably be committed, and one of these crimes was in fact committed."[14]

The Blaskic, Appeals Chamber held that:

"The Trial Chamber agreed with the statement in the Furundžija Trial Judgement that ‘it is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.’ The Appeals Chamber concurs with this conclusion."[15]

The Kvočka et al. Appeals Chamber held that:

"Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator."[16]

Regarding special intent crimes the Kvočka Trial Chamber held that:

"The aider or abettor of persecution, as a ‘special intent’ crime, must not only have knowledge of the crime he is assisting or facilitating. He must also be aware that the crimes being assisted or supported are committed with a discriminatory intent. The aider or abettor of persecution does not need to share the discriminatory intent, but must be aware of the broader discriminatory context and know that his acts of assistance or encouragement have a significant effect on the commission of the crimes. Each and every act of discrimination need not be known or intended by the aider or abettor. The aider or abettor of persecution will thus be held responsible for discriminatory acts committed by others that were a reasonably foreseeable consequence of their assistance or encouragement"."[17]

This was confirmed by the Babić Trial Chamber:

"To be liable as an accomplice in genocide, it must be established that the accused rendered a substantial contribution to the commission of the act in the awareness of the principle’s genocidal intent."[18]

M.4.3.3. ICTR

M.4.4. The perpetrator was aware of the circumstance of the crime

M.4.4.1. ICC

M.4.4.2. ICTY

In Stakić, the Trial Chamber held that:

"In the Ojdanic Decision, the Appeals Chamber held unequivocally that joint criminal enterprise is to be regarded as a form of ‘commission’ pursuant to Article 7(1) of the Statute and not as a form of accomplice liability. Since it constitutes a form of ‘commission’ in the sense that, insofar as a participant shares the purpose of the joint criminal enterprise as opposed to merely knowing about it, he cannot be regarded as a mere aider and abettor to the crime contemplated."[19]

In Furundzija, the Appeals Chamber stated:

"[T]wo types of liability for criminal participation ‘appear to have crystallised in international law - co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other.’ [T]o distinguish a co-perpetrator from an aider or abettor, ‘it is crucial to ascertain whether the individual who takes part in the torture process also partakes of the purpose behind torture (that is, acts with the intention of obtaining information or a confession, of punishing, intimidating, humiliating or coercing the victim or a third person, or of discriminating, on any ground, against the victim or a third person).’ [T]o be convicted as a co-perpetrator, the accused ‘must participate in an integral part of the torture and partake of the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person.’" (emphasis in original)

The Trial Chamber in Furundzija held:

"(i) [T]o be guilty of torture as a perpetrator (or co-perpetrator), the accused must participate in an integral part of the torture and partake of the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person. (ii) [T]o be guilty of torture as an aider or abettor, the accused must assist in some way which has a substantial effect on the perpetration of the crime and with knowledge that torture is taking place."[20]

The Trial Chamber in Krnojelac held:

"The seriousness of what is done by a participant in a joint criminal enterprise who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender. That is because a person who merely aids and abets the principal offender need only be aware of the intent with which the crime was committed by the principal offender, whereas the participant in a joint criminal enterprise with the principal offender must share that intent."[21]

In Krnojelac, the Appeals Chamber held that:

"[I]n the Tadić Appeals Judgement, the Appeals Chamber made a clear distinction between acting in pursuance of a common purpose or design to commit a crime and aiding and abetting the commission of a crime. (i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal. (ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contribution. (iii) 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, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. . ."."[22]

Additionally the Chamber stated:

"The Appeals Chamber draws attention to the distinction between the mental element required for aiding and abetting and that required for co-perpetration. In the case of aiding and abetting, the requisite mental element is knowledge that the acts committed by the aider and abettor further the perpetration of a specific crime by the principal offender. In the case of coperpetration, the intent to perpetrate the crime or to pursue the joint criminal purpose must be shown. The Appeals Chamber also recalls that in the Aleksovski Appeals Judgement it followed the Furundzija Judgement and held that ‘it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that […] the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.’ The Appeals Chamber also stated that ‘the aider and abettor [must be aware] of the essential elements of the crime committed by the principal (including his relevant mens rea).’ The Appeals Chamber notes that no cogent reason was given which would justify this case-law being amended."[23]

In Simić, Tadić and Zarić, the Trial Chamber held:

"As compared with the requisite mens rea for aiding and abetting, ‘[t]he participant in the basic form of joint criminal enterprise must share with the person who physically carried out the crime the state of mind required for that crime; the person who merely aids and abets must be aware of the essential elements of the crime committed, including the state of mind of the person who physically carried it out, but he need not share that state of mind.’"[24]

The Vasiljević Appeals Chamber stated:

"Differences exist in relation to the actus reus as well as to the mens rea requirements between both forms of individual criminal responsibility [aiding and abetting, and co-perpetration in a joint criminal enterprise]. [ . . .] Aiding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime. In the context of a crime committed by several co-perpetrators in a joint criminal enterprise, the aider and abettor is always an accessory to these co-perpetrators, although the co-perpetrators may not even know of the aider and abettor’s contribution."[25]

Additionally, the Chamber stated:

"In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose."[26]

It was also held that:

"Applying the Vasiljević definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. . . . Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator."[27]

However, in Vasiljević, the Appeals Chamber held under the heading "Aiding and abetting the joint criminal enterprise of persecution" that:

"In order to convict [Vasiljević] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that the Appellant had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate against the Muslim population, and that, with that knowledge, the Appellant made a substantial contribution to the commission of the discriminatory acts by the principal perpetrators."[28]

Similarly, the Trial Chamber in Simić, Tadić and Zarić stated:

"A joint criminal enterprise may be aided and abetted, where it is demonstrated that the aider and abetter knew the shared intent of the participants in the joint criminal enterprise."[29]

In Kvocka et al., the Trial Chamber held:

"[L]iability on the basis of a joint criminal enterprise requires a knowing assistance or encouragement for an aider or abettor. . . ."[30]

"[A]n aider or abettor of the joint criminal enterprise need only be aware that his or her contribution is assisting or facilitating a crime committed by the joint criminal enterprise. An aider or abettor need not necessarily share the intent of the coperpetrators."[31]

The Krnojelac Appeals Chamber held that:

"The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration"[32]

The Krstić Appeals Chamber held that:

"The Trial Chamber . . . made numerous findings that militate against a conclusion that Radislav Krstić had genocidal intent. It found that although Krstić was not a reluctant participant in the forcible transfer of the Bosnian Muslim population, he did appear concerned to ensure that the operation was conducted in an orderly fashion. He simply wanted the civilian population out of the area and he had no interest in mistreating them along the way. The Trial Chamber acknowledged, moreover, that the evidence could not establish that ‘Radislav Krstić himself ever envisaged that the chosen method of removing the Bosnian Muslims from the enclave would be to systematically execute part of the civilian population’ and that he ‘appeared as a reserved and serious career officer who is unlikely to have ever instigated a plan such as the one devised for the mass execution of Bosnian Muslim men, following the take-over of Srebrenica in July 1995.’ The Trial Chamber found that ‘left to his own devices, it seems doubtful that Krstić would have been associated with such a plan at all.’" "The Trial Chamber also found that Radislav Krstić made efforts to ensure the safety of the Bosnian Muslim civilians transported out of Potocari." "As has been demonstrated, all that the evidence can establish is that Krstić was aware of the intent to commit genocide on the part of some members of the VRS [Army of Republica Srpska] Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstić possessed the genocidal intent. Krstić, therefore, is not guilty of genocide as a principal perpetrator." "[T]he Trial Chamber’s conviction of Krstić as a participant in a joint criminal enterprise to commit genocide is set aside and a conviction for aiding and abetting genocide is entered instead."[33]

The Krstic Appeals Chamber held that:

"The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime. This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent. The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal."[34]

The Blagojevic and Jokic Trial Chamber held that:

"An individual may be held responsible for aiding and abetting genocide if it is shown that he assisted in the commission of the crime in the knowledge of the principal perpetrator’s specific intent. Aiding and abetting genocide is therefore defined by the following elements:

the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal that had a ‘substantial effect’ on the commission of the crime;

the accused had knowledge that his or her own acts assisted in the commission of the specific crime by the principal offender; and

"the accused knew that the crime was committed with specific intent."[35]

The Limaj Trial Chamber held that:

"The mens rea required is knowledge that, by his or her conduct, the aider and abettor is assisting or facilitating the commission of the offence. This awareness need not have been explicitly expressed. It may, of course, be inferred from all relevant circumstances. The aider and abettor need not share the mens rea of the perpetrator, but he or she must be aware of the essential elements of the crime ultimately committed by the perpetrator, and must be aware of the perpetrator’s state of mind. This is not to say that the aider and abettor must be aware of the specific crime that will be committed by the perpetrator. If the aider and abettor is aware that one of a number of crimes will probably be committed by the perpetrator, and one of those crimes is in fact committed, then he has intended to assist or facilitate the commission of that crime, and is guilty as an aider and abettor."[36]

M.4.4.3. ICTR

The Kayishema and Ruzindana Trial Chamber held that:

"…the accused need not necessarily have the same mens rea as the principal offender. Whilst knowledge or intention will give rise to individual responsibility under Article 6(1), the distinction is only of importance in distinguishing whether the accused aids or abets a crime or is a co-perpetrator."[37]

In the Semanza Case the Trial Chamber held that:

"In cases involving a form of accomplice liability, the mens rea requirement will be satisfied where an individual acts intentionally and with the awareness that he is influencing or assisting the principal perpetrator to commit the crime. The accused need not necessarily share the mens rea of the principal perpetrator; the accused must be aware, however, of the essential elements of the principal’s crime including the mens rea."[38]

Contradicting to this the Ntakirutimana Trial Chamber held that:

"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: (…) 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."[39]

The Kajelijeli Trial Chamber stated that:

"For purposes of accomplice liability, the mens rea requirement will be fulfilled where an individual acts with the knowledge that his or her act(s) assist in the commission of the crime by the actual perpetrator(s). While the accused need not know the precise offence being committed by the actual perpetrator(s), the accused must be aware of the essential elements of the crime, and must be seen to have acted with awareness that he or she thereby supported the commission of the crime."[40]

According to the ICTR in the Mpambara Trial Judgment:

"Joint criminal enterprise may be distinguished from aiding and abetting in two respects. Aiding and abetting requires a "substantial effect upon the perpetration of the crime"; by contrast, no minimum threshold of participation is required in a joint criminal enterprise. The extent or significance of the contribution may, however, be important in showing that the perpetrator possessed the requisite criminal intent. The aider and abettor, on the other hand, need only be aware of the criminal intent of the principal whom he assists or encourages."[41]

The Bisenginama Trial Chamber held that:

"The aider and abettor must have known the intent of the principal offender, and although he need not know the precise offence being committed by the principal offender, he must be aware of the essential elements of the crime."[42]

In the Nzabirinda Trial Judgement it was held that:

"The mens rea of an aider and abettor is demonstrated by proof of his knowledge that his act is assisting the commission of the crime by the principal offender. The aider and abettor must have known the intent of the principal offender, and although he need not know the precise offence being committed by the principal offender, he must be aware of the essential elements of the crime."[43]

Prosecutor v. Augustin Ngirabatware, Case No. MITC-12-29-A, Judgment (AC), 18 December 2014, paras. 153, 155-159:

"153. Ngirabatware argues that the Trial Chamber erred in failing to make the requisite mens rea findings in relation to his liability for aiding and abetting genocide. He further argues that the Trial Chamber erred in finding that he was aware of the genocidal intent of the physical perpetrators because there was no evidence showing: (i) the identity of the physical perpetrators; (ii) that any of those present at the roadblocks killed Tutsis; and (iii) that any of the physical perpetrators possessed genocidal intent. He also argues that, since the lnterahamwe at the Gitsimbi/Cotagirwa roadblock were instructed by Bagango and Hassan Tubaramure to kill all the Tutsis, the Trial Chamber erred in inding that he knew that the lnterahamwe were engaged in killings and that his actions would contribute to those killings." 

"155. 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 perpetraror. 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.

156. The Trial Chamber found that “Ngirabatware was aware that the lnterahamwe were engaged in killings and that his actions would contribute to these killings. It also concluded that the lnterahamwe attacked and killed Tutsis in Nyamyumba Commune with genocidal intent and that Ngirabatware was aware of the physical perpetrators' specific intent. Therefore, contrary to Ngirabatware's submission, the Trial Chamber made the necessary mens rea findings in relation to his liability for aiding and abetting genocide.

157. The Appeals Chamber has already considered and dismissed Ngirabatware's argument that the Trial Chamber failed to sufficiently identify the physical perpetrators of the crimes. Ngirabatware's submission that there was no evidence showing that the lnterahamwe who manned the roadblocks were engaged in killings is likewise without merit. The Trial Chamber considered extensive evidence, including first-hand witness testimony, that Tutsis were killed at these roadblocks and in their houses. As to the genocidal intent of the physical perpetrators, in view of Ngirabatware's inflammatory statements at the roadblocks and the ensuing pattern of killings, the Appeal Chamber considers that the evidence before the Trial Chamber was sufficient to support a finding that the physical perpetrators acted with genocidal intent. Particularly in relation to Juma, an Interahamwe, the Trial Chamber explicitly found that he possessed genocidal intent and participated in the attack against Nyambwega following Ngirabatware's statement at the Bruxelles roadblock that Nyambwega was communicating with "Inyenzi". 

158. Ngirabatware also fails to show an error in the Trial Chamber's findings that he was aware of the genocidal intent of the physical perpetrators and that his acts would contribute to the killings. The Appeals Chamber recalls the Trial Chamber's finding that Ngirabatware distributed weapons at the Bruxelles and Gitsimbi/Cotagirwa roadblocks stating that he did not want to see any Tutsis in Nyamyumba Commune. In these circumstances, whether Ngirabatware knew that Bagango and Hassan Tubaramure had instructed the Interahamwe manning the roadblocks to kill all the Tutsis is irrelevant. In addition, contrary to Ngirabatware's suggestion, knowledge of the actual commission of the crime is not required. The Appeals Chamber recalls in this regard that, where an accused is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime and is guilty as an aider and abettor.

159. Accordingly, Ngirabatware's argument that the Trial Chamber erred in relation to the mens rea elements of aiding and abetting is dismissed."