The Pre-Trial Chamber I declined to confirm the charges of war crimes and crimes against humanity against Mbarushimana because the Prosecution had not proved a number of key elements including the existence of a policy to attack the civilian population and the existence of a group of persons acting with the common purpose of perpetrating crimes. The Appeals Chamber dismissed the Prosecution’s appeal in its May 2012 judgment.
1. Aiding, abetting or otherwise assisting with a significant contribution to the underlying crime; the contribution need not be substantial as a matter of law (although this is not settled jurisprudence for the ICC) (¶ 280)
2. Purpose of facilitating the commission of the crime (¶ 281)
ACTUS REUS: This case recognizes, “While there is little jurisprudence at this time interpreting articles 25(3)(b) or (c) of the Statute, the application of analogous modes of liability at the ad hoc tribunals suggests a substantial contribution to the crime may be contemplated” (¶ 279). Indeed, there is “scholarly disagreement as to whether the actus reus required should likewise differ from the ad hoc tribunals’ ‘substantial contribution’ requirement” (¶ 281).
MENS REA: “The Chamber notes that, unlike the jurisprudence of the ad hoc tribunals, article 25(3)(c) of the Statute requires that the person act with the purpose to facilitate the crime; knowledge is not enough for responsibility under this article” (¶ 274). Further, “the jurisprudence of the ad hoc tribunals does not require the aider and abettor to share the intent of the perpetrator to commit the crime, whereas under article 25(3)(c) of the Statute the aider and abettor must act with the purpose of facilitating the commission of that crime” (¶ 281).