When there are several people implicated in committing a criminal offence, one is dealing with a situation of criminal participation. Aiding and perpetration by means are two important forms of it, which are at the same time very similar to one another.
The key element in perpetration by means, also called indirect perpetration, is that an innocent person was merely an instrument in the hands of the actual perpetrator because of young age, status, disability etc. . Therefore, the person who committed the crime in a factual sense was only manipulated through duress, mistake, lack of knowledge or mental capacity etc. and that the person who manipulated them had, in fact, the intent of committing the crime – „Perpetration by means was originally created to hold the person behind the scenes criminally liable if the factual perpetrator himself is innocent.”[1]. An example could be a mother convincing her six-year-old son of robbing a shop using a gun handed by her, as a game.
There are discussions in the legal doctrine, based on an extensive interpretation of Article 25(3)(a) of the Rome Statute of the ICC and on jurisprudence from the International Criminal Court about another form of criminal liability which would combine perpetration by means (indirect perpetration) with secondary participation, that would be called indirect co-perpetration. The outline of it was explained by the Court in the case Katanga and Chui ”An individual who has no control over the person through whom the crime would be committed cannot be said to commit the crime by means of that other person used as an instrument—these crimes can be attributed to him on the basis of mutual attribution.”[2]. However, if he acts jointly with another individual—one who controls the person This form of criminal liability would be very helpful in the context of international criminal law, for example ”to cope with leaders of massmember groups who are detached from the scene of the crime and from its physical perpetration, which is left to subordinates”[3].
”The concept of aiding is an abstract one and myriad different forms of conduct may be subsumed under it. In general terms it can be stated that any conduct that furthered or made the commission of the offence easier, more secure or swifter can be qualified as aiding.”[4] Hence, any action which enabled an offence being committed more quickly or easily qualifies as aiding. There must be some sort of causal connection between the assistance and the crime commission (if the assistance would have been removed from the causal chain, the crime would not have been committed in the same way). Additionally, an intent to support principal’s action and understanding of the essential details (awareness that criminality is likely to occur) are needed to establish aiding.[5] An example of aiding could be driving a car for someone to or from the scene of a crime.
Thus, unlike perpetration by means, in the case of aiding the principal perpetrator is guilty of the offence and fulfills the actus reus and the mens rea requirements of criminal liability and no manipulation of one innocent party takes place. Another difference is that perpetration by means is a form of direct responsibility, while aiding results in accessorial criminal liability.
[1] J. Keiler & D. Roof, Comparative Concepts of Criminal Law, Cambridge Intersentia 2019 (3rd edition) 312.
[2] Prosecutor v. Katanga and Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008.
[3] S. Eldar, Indirect Co-perpetration, Criminal Law and Philosophy (2014) 8 606.
[4] ibid 301.
[5] ibid 301.
