Gbao submitted that the Trial Chamber erred in finding that he tacitly approved of and encouraged the assaults on Salahuedin and Jaganathan and he challenged his conviction for aiding and abetting those assaults. The Appeals Chamber upheld the sentences despite complaints about their length and the incorrect approach of the Trial Chamber. In particular, the Appeals Chamber made some important findings as to the law applicable for defining a common plan in a joint criminal enterprise and the requirements for the crime of hostage taking.
Upheld the Trial Chamber standard (SCSL-04-15-T, RUF)
ACTUS REUS: “In the context of aiding and abetting by tacit approval and encouragement, the aider and abettor need not be a ‘superior authority’ or have ‘effective control’ over the principal perpetrator. Rather, cases typically involve an accused who holds a position of authority and is physically present at the scene of the crime, such that his nonintervention provides tacit encouragement to the principal perpetrator. As a Trial Chamber of the ICTY has put it, ‘an approving spectator who is held in such respect by the other perpetrators that his presence encourages them in their conduct, may be guilty of complicity.’ It may be that, in practice, the aider and abettor will be superior to, or have control over, the principal perpetrator; however, this is not a condition required by law” (¶ 541).
MENS REA: “[I]t is not necessary that the aider and abettor had knowledge of the precise crime that was intended and which was actually committed, as long as he was aware that one of a number of crimes would probably be committed, including the one actually committed” (¶ 546).