Aiding and Abetting and the International Criminal Court’s Bemba et al. Case: The ICC Trial and Appeals Chamber Consider Article 25(3)(c) of the Rome Statute (1998)

Abstract

This article discusses the ICC’s Bemba et al. Trial and Appeal Judgments concerning aiding and abetting under Article 25(3)(c) of the Rome Statute. It analyses three issues that were addressed at trial and some of which were considered on appeal: (i) the actus reus contribution threshold; (ii) encouragement or moral support and the principal perpetrators; and (iii) the mens rea of ‘purpose’. It concludes that the Bemba et al. Trial Judgment provided clarity on the mens rea under Article 25(3)(c), while the Bemba et al. Appeal Judgment settled the question of whether a principal perpetrator needs to be aware of the aider and abettor’s encouragement or moral support for it to have an effect on the crime. However, the Bemba et al. Appeal Judgment ignored the question of whether there is a minimum contribution threshold for the actus reus of aiding and abetting, despite the issue being clearly raised.

Keywords: aiding and abetting, international criminal court, ICC, trial judgment, appeal judgment, Article 25(3)(c), Bemba et al. case., actus reus, contribution threshold, aiding and abetting after the fact, accessory after the fact, encourage or moral support, principal perpetrators, mens rea, purpose

JEL Classification: K14, K33, K42