Dr Sarah Finnin is the author of the book Elements of Accessorial Modes of Liability: Article 25(3)(b) and (e) of the Rome Statute of the International Criminal Court (Martinus Nijhoff, 2012). She is presently an Associate Legal Officer at the ICTY

Nema Milaninia is a Legal Officer, Office of the Prosecutor, International Criminal Tribunal for the former-Yugoslavia.

 The views expressed herein are those of the authors alone and do not necessarily reflect the views of the International Criminal Tribunal for the former Yugoslavia or the United Nations in general.

The terms of Article 25(3)(c) of the Rome Statute diverge from the standard definition of the mental element required for aiding and abetting under customary international law. Article 25(3)(c) requires that an accused act “[f]or the purpose of facilitating the commission” of a crime. In doing so, it provides for a mental element different from, and in addition to, the “knowledge” or “intent” requirements as defined in Article 30 of the Statute. Article 25(3)(c) echoes the approach originally developed by the American Law Institute in its Model Penal Code (“MPC”), which requires that an accomplice act “with the purpose of promoting or facilitating the commission of the offense” [Section 2.06(3)(a)(ii)]. By contrast, customary international law, as reflected in the jurisprudence of the ICTY [Šainović et al AJ, para. 1649], ICTR [Kalimanzira AJ, para. 86], SCSL [Taylor AJ, para. 436] and ECCC [Chea and Samphan TJ, para. 704], requires only that the accused know that his or her acts “assist in the commission of the offense”.

Given that the term “purpose” is not defined in the Rome Statute, the International Criminal Court (“ICC” or “Court”), will have to interpret the term in accordance with Article 21 on applicable law, and with general principles of treaty interpretation as set out in the Vienna Convention on the Law of Treaties (“VCLT”). Under Article 31 of the VCLT, the terms of Article 25(3)(c) must be interpreted “in good faith in accordance with [their] ordinary meaning”, “in their context and in the light of [the Rome Statute’s] object and purpose”. That “object and purpose” will, in our view, include the limitations on the Court’s jurisdiction stemming from the principles of gravity and complementarity [Rome Statute, Articles 1, 17(1)(d), 53(2)(c)].

Article 25(3)(c) represents a political compromise resulting from disagreement amongst common law and civil law representatives at the diplomatic conference for the establishment of the ICC, who had difficulty agreeing on the most appropriate means of limiting the scope of application of Article 25(3)(c) in the specific context of the ICC [Taylor AJ, para. 435; Scheffer Amicus Curiae Brief in John Doe v. Nestle, S.A., No. 10-56739, pp. 11-13]. The ICC was never intended to prosecute the full range of individuals who make a culpable contribution to the commission or attempted commission of a crime within the jurisdiction of the Court [Rome Statute, Article 17(1)(d)]. The Court was designed to function in a manner that is complementary to national criminal jurisdictions, which themselves maintain the primary responsibility for trying the vast majority of perpetrators.

This is not to say that the approach adopted in Article 25(3)(c) was an appropriate means for limiting the scope of cases which come before the ICC. In fact, an additional “purpose” requirement is problematic for a number of reasons. For example, it might have the effect of protecting individuals from liability where they take advantage of situations of armed conflict for financial gain, knowing that their conduct makes a substantial contribution to the commission of international crimes. Though one may be tempted to look to the MPC in an effort to resolve some of these problems, the Court may only have reference to the MPC itself, its commentaries, or the interpretation of MPC under domestic law, in one of two ways: (i) as a supplementary means of interpretation in accordance with Article 32 of the VCLT, to the extent that they informed the “preparatory work of the [Rome Statute] and the circumstances of its conclusion”; or (ii) as just one source, amongst others, from which the Court might derive a general principle of law under Article 21(1)(c) of the Statute.

It may not be necessary, however, to have recourse to the MPC to develop a workable interpretation of “purpose”. There is scope for the Court to interpret the “purpose” requirement broadly, and in a manner that minimises the divergence from customary international law. First, as a matter of evidentiary proof, where there is evidence that an accused had knowledge that his or her conduct would facilitate the commission of a crime, and nevertheless engaged in that conduct, the Court could infer that the accused acted for the purpose of facilitating the commission of that crime. Second, the Court could interpret the terms of Article 25(3)(c) as requiring only that facilitating the commission of a crime be a purpose of the accused’s conduct, but not the sole purpose. For example, evidence of a financial motive would not itself exclude a finding that the accused also acted for the purpose of facilitating the commission of a crime.

Regardless of the interpretation ultimately adopted by the Court, Article 25(3)(c) was not intended to reflect State practice and opinio juris and thus codify customary international law. Article 10 of the Rome Statute itself provides that its provisions should not “be interpreted as limiting or prejudicing in any way existing or developing rules of international law” for purposes other than cases directly before the Court. As David Scheffer, head of the U.S. delegation to the Rome Conference, has recently argued before the U.S. Ninth Circuit Court of Appeals, “[w]hile some other articles of the Rome Statute ended up reflecting customary international law, Article 25(3)(c) is not one of them.” [Scheffer Amicus Curiae Brief in John Doe v. Nestle, S.A., No. 10-56739, p. 9].

Yet ironically, in some instances, Article 25(3)(c) has been treated at the domestic level as if it were a reflection of customary international law. This has occurred in two ways: (i) through the direct incorporation of the Rome Statute (including Article 25) into domestic legislation by States implementing their obligations under the Statute; and (ii) where domestic courts improperly rely on Article 25 as a source of customary international law regarding individual criminal responsibility in their own jurisprudence (for example, in U.S. Alien Tort Statute litigation where reliance on Article 25(3)(c) is having a real and immediate impact on the scope of corporate liability for aiding and abetting international crimes) [Aziz v. Alcolac, Inc., 658 F.3d 388, 399–400 (4th Cir. 2011); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009)].

It would be wrong for States to limit their jurisdiction over international crimes in this way. Eschewing the recognised standard under customary international law in favour of the political compromise contained in Article 25(3)(c) would create an “impunity gap” which the Rome Statute’s principle of complementarity was designed to avoid. The very purpose of complementarity is that States maintain primary responsibility for prosecuting international crimes. It does not mean that the jurisdiction of States needs to mirror that of the ICC. The ICC was envisioned as an additional tool in the fight against impunity that would exercise jurisdiction over only those cases of most serious concern to the international community as a whole. States, however, can and should maintain the customary international law standard for aiding and abetting, so as to ensure that all parties who contribute to the commission of international crimes are held accountable.