32. […] The Appeals Chamber 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 to facilitate the perpetration of a crime.[1]

109.     The Appeals Chamber recalls that the mens rea requirements for aiding and abetting liability are as follows:

It is firmly established in the jurisprudence of the [ICTY] that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator. In addition, the Appeals Chamber recalls that it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed – if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.

The Appeals Chamber has previously defined “specific crime” as referring to, for example, “murder, extermination, rape, torture, wanton destruction of civilian property, etc.” There is no legal requirement that the aider and abettor know every detail of the crime that was eventually committed. Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided.[1]

[…]

130.     […] [T]he mens rea for aiding and abetting liability does not require the aider and abettor to share the intent of the principal perpetrator[2] and, similarly, there is no requirement of having participated in the planning of crimes.[3] Rather, the mens rea standard requires that the aider and abettor be aware of the essential elements of the crime ultimately committed, including the intent of the principal perpetrator.[4] [See also para. 606]

121.     […] The Appeals Chamber further recalls that an individual’s high-ranking position, coupled with the open and notorious manner in which criminal acts unfold, can provide a sufficient basis for inferring knowledge of the crimes.[1]

[See also Footnote 364]

268. The Appeals Chamber observes that the ICTY Appeals Chamber in the [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A] case considered that neither the jurisprudence of the ICTY and the ICTR nor customary international law included specific direction as an element of aiding and abetting liability.[1] It rejected the approach adopted in the Perišić Appeal Judgement, which required specific direction as an element of the actus reus of aiding and abetting,[2] and held that this approach was “in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law”.[3] Given the confirmation of this approach in the Popović et al. Appeal Judgement,[4] and subsequently by the Stanišić and Simatović ICTY Appeal Judgement,[5] the jurisprudence as set out in the Šainović et al. Appeal Judgement is settled law. Significantly, the Appeals Chamber in the Šešelj Appeal Judgement recognized this approach in proceedings before the Mechanism.[6] The Appeals Chamber further considers that, as the Trial Chamber was explicitly ordered by the ICTY Appeals Chamber to “apply the correct law on aiding and abetting liability […], which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime”,[7] the Trial Chamber was not at liberty to deviate from this order.[8]

270. With regard to Simatović’s reliance on the Rome Statute, the Appeals Chamber observes that the ICTY Appeals Chamber in the Šainović et al. Appeal Judgement considered a similar argument and concluded that the adoption of an international treaty does not necessarily prove that states consider the content of that treaty to express customary international law.[1] The Appeals Chamber further recalls that the Rome Statute, as a multilateral treaty, is not binding on it.[2] Consequently, Simatović fails to justify why the Appeals Chamber should rely on the Rome Statute rather than its own jurisprudence and that of the ICTY and ICTR.

294.     The Appeals Chamber recalls that, in line with Rule 112 of the Rules, the evidence of a person who is objectively unable to testify before a trial chamber may be admitted in written form even if the evidence goes directly to the accused’s acts and conduct.[1] Furthermore, corroboration is not a requirement for admission of evidence under this Rule, but rather goes to the reliability of the evidence and whether, once admitted, it will be relied upon to support a conviction.[2] If such evidence is to support a conviction, it must be corroborated.[3]

See also related excerpts to the Notion “Statement under Rule 92 quarter ICTY”.

327. The Appeals Chamber recalls that Rule 103(C) of the Rules provides that sentencing submissions shall be addressed during closing arguments, and the Trial Chamber correctly stated that a trial chamber is under no obligation to search for information that counsel did not put before it at the appropriate time in assessing mitigating factors.[1] […]

359.     […] [T]he Appeals Chamber recalls that the ICTR Appeals Chamber noted that the length of the proceedings is not one of the factors that a trial chamber must consider, even as a mitigating circumstance, when determining a sentence.[1] Indeed, the ICTR Appeals Chamber has held that where a trial chamber had not found a violation of an accused’s fundamental right to an expeditious trial, it abused its discretion in considering as a mitigating circumstance the length of the proceedings, even when they had been lengthened unnecessarily.[2] […]

397. […] The Appeals Chamber considers that, in the specific context of th[e] case, the Trial Chamber’s approach is consistent with the requirement that, although an accused’s contribution to the common criminal purpose need not be necessary or substantial, “it should at least be a significant contribution to the crimes for which the accused is found responsible”.[1]

Footnote 1248. Whether an accused contributed to the joint criminal enterprise and whether an accused’s conduct amounts to a significant contribution upon which joint criminal enterprise liability may be based are questions of fact to be determined on a case-by-case basis. See Mladić Appeal Judgement, para. 228; Stanišić and Župljanin Appeal Judgement, para. 110; Krajišnik Appeal Judgement, para. 696. See also Brđanin Appeal Judgement, para. 427 (noting that “not every type of conduct would amount to a significant enough contribution for this to create criminal liability for the accused regarding the crime in question”).

[For the specific context of the case see paras. 396-400, footnote 1246]

413. […] The Appeals Chamber observes that, while distinct conduct has been assessed collectively when evaluating the significance of an accused’s contributions to the crimes of the joint criminal enterprise,[2] what amounts to a significant contribution upon which joint criminal enterprise liability may be based is a question of fact to be considered on a case-by-case basis.[3] In this context, the Appeals Chamber is not persuaded by the Prosecution’s submission that the Trial Chamber, when making a factual assessment, applied an incorrect legal standard in assessing, on a case-by-case basis, the significance of the alleged contributions to the common criminal purpose in paragraphs 455 and 465 of the Trial Judgement.

[See also para. 470]

520. The Appeals Chamber recalls that the significance of an accused’s contribution to the common criminal purpose is relevant to assessing his or her mens rea in connection with his or her alleged joint criminal enterprise liability.[1] […].

522. The Appeals Chamber recalls that the mens rea element for the first category of joint criminal enterprise liability requires that an accused share the intent to commit the crimes that form part of the common criminal purpose of the joint criminal enterprise and the intent to participate in a common plan aimed at their commission.[2]