After the fall of the Cambodian government in 1975, Pol Pot and the Communist Party of Kampuchea sought to establish a revolutionary state and instituted a policy of arbitrary detention, torture and execution. Duch, Chairman of the interrogation center S21, was responsible for extracting confessions and information, and teaching interrogation techniques. In this case, the Trial Chamber convicted Duch of multiple counts of war crimes and crimes against humanity.
1. “Practical assistance, encouragement, or moral support with a substantial effect on the commission of the crime by the perpetrator” (¶ 533)
2. Knowledge a crime would probably be committed and awareness that his conduct assisted the commission of that crime (¶ 535)
ACTUS REUS: “Though often considered jointly in the jurisprudence of international tribunals, ‘aiding’ and ‘abetting’ are not synonymous” (¶ 533). “No evidence of a plan or agreement between the aider and abettor and the perpetrator is required” (¶ 534). While “[a]n accused may not be convicted of aiding and abetting a crime that was never carried out,” the “perpetrator of the crime need not have been tried or even identified” (¶ 534).
MENS REA: “This knowledge can be inferred from the circumstances” (¶ 535). “Further, the requirement that the accused be aware of, though need not share, the perpetrator’s intent applies equally to specific-intent crimes, like persecution as a crime against humanity” (¶ 535).
Note on Translation: “As a preliminary matter, the Chamber notes that the French version of Article 29 (new) of the ECCC Law equates “aiding and abetting” to the notion of ‘complicité’. In contrast, the French versions of the Statutes of both the ICTY and ICTR have equated the phrase “aiding and abetting” to “aidé et encouragé”. Given that Article 29 (new) of the ECCC Law is modelled on the provision of the ad hoc international criminal tribunals and that it derives from notions of international law, the Chamber finds that the phrase ‘aidé et encouragé’ more clearly reflects the nature of this form of responsibility than does the notion of ‘complicité,’ which may encompass broader conduct. The Khmer version of Article 29 (new) of the ECCC Law further supports this interpretation” (¶ 532).