Prosecutor v. Bemba et al.

Case Name: 
Prosecutor v. Bemba et al.
ICC-01/05-01/13-1989 (Trial Chamber VII Judgement Pursuant to Article 74 of the Statute)
Decision Date: 
October 19, 2016
Key Facts: 

The Trial Chamber VII found the five Accused guilty of, inter alia, intentionally and corruptly influencing 14 defense witnesses and presenting their false evidence to the Court. In particular, the Chamber found Kilolo guilty of inducing the false testimony given by the 14 witnesses, and Mangenda guilty of aiding the false testimony by two defense witnesses and abetting the false testimony given by seven defencs witnesses.

Note: This case goes through an extensive analysis of the meaning of aiding and abetting under Article 25(3)(c). While other cases before the ICC have considered this standard - no other case addresses Article 25(3)(c) in such great detail.


Pursuant to Rome Statute Article 25(3)(c), the elements of aiding and abetting include:

1. Aiding, abetting or otherwise assisting in the commission of an offence (¶ 87)

2. Conduct with “an effect on the commission of the offence” (¶ 90)

3. Purpose of facilitating the commission of the crime (¶ 97)

Key Passages : 

ACTUS REUS: Aiding, abetting, or otherwise assisting are all discrete acts of assistance with distinct meanings (¶¶ 87-89). Even though the contribution of the accessory need not be conditio sine qua non to the commission of the principal offence, the assistance must have furthered, advanced or facilitated the commission of such offence (¶ 94). The assistance “may be given before, during or after the offence has been perpetrated” (¶ 96). Further, “the perpetrator need not be personally present during the commission of the offence” [and] “the accessory may provide assistance to the principal perpetrator or the intermediary perpetrator” (¶ 96). While assistance must have “an effect on the commission of the offence,” unlike the ad hoc tribunals’ Lubanga and Mbarushimana cases, there is no specific threshold of assistance required to be found guilty (¶¶ 90-93).

MENS REA: The mens rea standard required by Article 25(3)(c) is greater than the mens rea standard required by Article 30 of the Statute. (“Suffice it to say here that the term ‘purpose’ found in the opening clause ‘for the purpose of facilitating the commission of such a crime’ in Article 25(3)(c) of the Statute goes beyond the ordinary mens rea standard encapsulated in Article 30 of the Statute and penalises such assistance only if a higher subjective element is satisfied on the part of the accessory” (¶ 95). “Article 30 of the Statute applies to all forms of participation under Article 25 of the Statute, including Article 25(3)(c) ‘unless otherwise provided’. Unlike other international instruments, Article 25(3)(c) of the Statute expressly sets forth a specific ‘purpose’ requirement according to which the assistant must act (‘for the purpose of facilitating the commission of such crime’). This wording introduces a higher subjective mental element and means that the accessory must have lent his or her assistance with the aim of facilitating the offence. It is not sufficient that the accessory merely knows that his or her conduct will assist the principal perpetrator in the commission of the offence” (¶ 97). “Additionally, liability for aiding and abettig an offence requires proof that the accessory also had intent with regard to the principal offence pursuant to Article 30 of the Statute, which applies by default. This means that the aider or abettor must at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events. Finally, it is not necessary for the accessory to know the precise offence which was intended and which in the specific circumstances was committed, but he or she must be aware of its essential elements” (¶ 98).

Trial Chamber VII