DR SIPHOSAMI MALUNGA
THE concept has its origins in the post-Nuremberg Industrialists case, where the International Military Tribunal (IMT) convicted two industrialists for supplying the poison that the SS used in the gas chambers to exterminate Jews.
The Statutes of the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) provide for “aiding and abetting” as a mode of criminal participation or liability.
Article 25(3) (c) of the Rome Statute also provides for aiding and abetting. The ICTY and ICTR have elaborated the concept of aiding and abetting in their jurisprudence. Aiding means “giving assistance to someone” and abetting involves “facilitating the commission of a crime by being sympathetic thereto”.
Despite being two distinct modes of liability or participation, aiding and abetting are often charged in juxtaposition.
In Tadić, the Appeals Chamber held “the aider and abettor is always an accessory to a crime perpetrated by another person, the principal. In Vasiljevic the Appeals Chamber held that within a JCE, the aider and abettor carries out acts aimed at assisting, encouraging and lending moral support to the commission of specific crimes. The Appeals Chamber findings in the Tadić and Vasiljevic cases reaffirm that whatever support is provided by the aider and abettor, it should be directed at the commission of the crime. This entails that any support which may assist, encourage or lend moral support, but is not directed towards the commission of the crime, may not suffice as aiding and abetting.”
In Prosecutor v Emmanuel Rukundo, the ICTR Appeals Chamber held that mens rea required for aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.
Specific intent crimes such as genocide also require that “the aider and abettor must know of the principal perpetrator’s specific intent”. The ICTR Appeals Chamber made a similar finding in Prosecutor v Dominique Ntawukulilyayo. The ICTR an “aider and abettor commit[s] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime”. The Appeals Chamber held that the Appeals Chamber recalled that ‘the actus reus of aiding and abetting is constituted by acts or omissions specifically aimed at assisting, encouraging, or lending moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime “(…) whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”, and need not “serve as condition precedent for the commission of the crime”.
The ICTR concluded that the accused had “substantially contributed to the Kabuye Hill killings by encouraging Tutsis to seek refuge there and then providing reinforcements to those attempting to kill them. These acts alone suffice to constitute the actus reus of aiding and abetting”.
An important consideration relates to specific intent crimes such as persecution and genocide. With regard to the crime of persecution, an offence with a specific intent, an aider and abettor must thus be aware not only of the crime whose perpetration he is facilitating, but also 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.
However, they need not know either the precise crime that was intended or eventually committed. This means that an individual may be found liable for aiding and abetting if he or she is aware that one of a number of crimes will probably be committed as a result of his or her assistance.
The aider and abettor need not possess genocidal or discriminatory intent respectively. But the aider and abettor’s mens rea must be distinguished from that of the principal. Participatory liability has its own mental element through which the mental element of the underlying crime is established.
Judge Shahabuddeen’s partial dissenting opinion in Krstić is compellingly persuasive in this regard. He held that the intent of the aider and abettor is not the same as the perpetrator and the intent of the aider and abettor is to provide means by which the perpetrator can commit the crime. This provides a clear distinction of the mental element requirement between the principal and the accessory.
There are two elements of aiding and abetting: first, the accused must lend practical assistance, encouragement, or moral support, and second, which must have had substantial effect. As to the first, aiding/abetting may occur at one or more of the three possible stages of the crime, planning, preparation, or execution.
In the case of Prosecutor v Kvočka et al, the ICTY held that an aider and abettor may also become a co-perpetrator if their assistance lasts for an extensive period of time.
The Trial Chamber held that an aider and abettor may eventually become an accomplice, even without physically committing crimes, if their participation lasts for a long time or becomes more directly involved in sustaining the functioning of the enterprise.
However, this raises the questions of what constitutes an extensive or “long time”, and also what does the maintenance and the functioning of the enterprise entail.
Scholars posit that the manner in which the ad hoc tribunals and the ICC have dealt with aiding and abetting is fragmented. They argue that the definition of actus reus and mens rea for aiding and abetting has varied between the tribunals and the ICC and that the latter has set different standards for satisfying aiding and abetting.
In relation to the actus reus, the ICTY, ICTR, Special Court for Sierra Leone (SCSL) and Extraordinary Chambers in the Courts of Cambodia (ECCC) all require that the alleged act of aiding or abetting has a “substantial effect” on the commission of the principal crime whereas the ICC requires the assistance to have “an effect’ on the principal crime and not necessarily a substantial effect”. This suggests that the International Criminal Court (ICC) sets a lower bar compared to the ad hoc tribunals. The substantiality requirement has also been a subject of debate among scholars particularly in relation to the ICC.
Finnin has argued that the ICC should follow the substantial effect standard set out by the ad hoc tribunals despite the Rome Statute not explicitly providing for this, whereas Kai Ambos has argued that the terminology “facilitating” under Article 25(3)(c) entails that direct and substantial assistance is not necessary.
However, what constitutes a substantial effect remains unsettled, even though there have been judgments to this effect, for instance, in Furundzija, the ICTY Trial Chamber held that “any marginal participation” will not satisfy the substantiality requirement and in Nyiramasuhuko, the ICTR Appeals Chamber held that the substantiality requirement does not entail a causal relationship.
This is also supported by Ambos who argues that a causal relationship does not need to be established.
However, the ICC Trial Chamber in Prosecutor vs Bemba et al has held that a general causal requirement or link is required. Despite this emphasis, it seems the substantiality requirement does not carry much weight in practice as only two individuals were acquitted by the ad hoc tribunals for the lack of the substantiality requirement.
Similarly, in relation to the mens rea, the ad hoc tribunals require “knowledge” that the acts assist in the commission of the principal crime whereas the ICC requires “purpose” to facilitate the commission of the principal crime.
This shows that the ICC requires a higher mens rea standard for aiding and abetting compared to the ad hoc tribunals.
The elements of aiding and abetting as summarised above implicate the top political and military leadership in Zanu PF and Zimbabwe National Army (ZNA). As outlined above, the accused must lend practical assistance, encouragement, or moral support at one or more of the three possible stages of the crime namely planning, preparation, or execution.
As already indicated, the then Minister of Legal and Parliamentary Affairs, Eddison Zvobgo supported the late former president Robert Mugabe’s plan to eradicate all opposition to Zanu’s quest for a one-party state and therefore provided moral support at the planning stage of the crime.
Additionally, Allan Doran notes that Zvobgo who was a member of the Zanu central committee spoke of a “decision of the central committee that there had to be a massacre of Ndebeles”.
The central committee of Zanu is a principal organ and acts on behalf of the congress when it is not in session and implements all policies, resolutions, directives and decisions as enunciated by congress.
This means that the support of Mugabe’s plan by the central committee was akin to support by congress. At the time the central committee was a twenty-member group, and Zvobgo’s support of Mugabe’s plan in this committee illustrates the substantial effect and impact on the commission of the crimes committed by Five Brigade.
Without the support of key members in the central committee, it would have been difficult for Mugabe to carry out his plan.
Additionally, it could be argued that the then commander of the ZNA General Solomon Mujuru provided practical assistance at the preparation stage of crime.
Mujuru used his position as the commander of the ZNA to purge former Zipra combatants in the army that were aligned to Zapu leadership and this conduct had substantial effect to the commission of the crime as it set the ground for the elimination of former Zipra combatants by Five Brigade under the guise of combatting dissidents.
In addition, the then Air Vice-Marshall Josiah Tungamirai provided practical assistance at the execution stage of the crime.
As the acting commander of ZNA, he established the ZNA task force deployed to Matabeleland to counter growing dissident activity and also continued the purging of former Zipra combatants from the army in an “accelerated policy of de-Ziprafication and concomitant Zanlafication” within the ZNA.
Blessing Miles Tendi notes that the British Military Advisory and Training Team (BMATT) in Zimbabwe was also complicit in this design.
Furthermore, the then Brigadier Constantine Chiwenga who commanded the One Brigade in Matabeleland at the time of Five Brigade incursions, who was later succeeded by Lieutenant-General Edzai Chimonyo, and Lieutenant-Colonel Lionel Dyck who commanded the parachute battalion as well as Ken Flower who headed the Central Intelligence Organisation, provided practical support at the execution stage of the crime by providing military, logistical and intelligence support to Five Brigade which contributed and had substantial effect to the commission of the crime.
About the writer: Dr Siphosami Malunga is a Zimbabwean international lawyer.