Contribution to Panel on International Law and Theories of Global Justice, American Society of International Law, Annual Conference 2020.
Tulane University, November 2019
Quartième Conférence, Collège de France, 2019
Troisième Conférence, Collège de France, 2019
Deuxième Conférence, Collège de France, 2019
Première conférence, Collège de France, 2019
Galway Summer School in International Criminal Law, 2017
Vancouver, November 2017
Complicity, or aiding and abetting, has attracted a great deal of attention of late in the practice of international criminal justice, theoretical literature on the topic and within the blogosphere. Unfortunately, several younger scholars who have written excellent books on the topic haven’t had the opportunity to weigh in, so I wanted to give them an opportunity to advertise their great work and take part in the respectfully critical enterprise I am initiating here.
I also wanted to use this opportunity to raise a question that has not attracted much attention elsewhere, namely, how do we interpret the reference to “purpose” in the ICC Statute’s definition of aiding and abetting? In that regard, I recently stumbled over the fact that I and, I suspect, many others in ICL have misinterpreted the provision, but I wanted to put that idea to scholars with real expertise on these issues. Thus, I have invited the following three authors to respond to the question I set out further below:
Dr Flavio Noto – Under the direction of Hans Vest and others, Flavio authored an excellent thesis entitled Secondary Liability in International Criminal Law: A Study on Aiding and Abetting or Otherwise Assisting the Commission of International Crimes (DIKE, 2013).
Dr Sarah Finnin – Sarah wrote a fantastic book for her doctoral thesis entitled 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;
Dr Cassandra Steer – Cassandra is about to publish a great book entitled Translating Guilt: Identifying Leadership Liability for Mass Atrocity (T.M.C Asser Press, 2015). She is a Lecturer and Researcher at the Amsterdam Centre for International Law, but about to join McGill.
To recall, Article 25(3)(c) of the ICC Statute states that:
“In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:… (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”
The received wisdom is that the reference to purpose requires a volitional commitment to the consummated offense, which makes the ICC standard higher than the position of knowledge in other international tribunals. In previous work, I have assumed as much, but I recently discovered that this is at least incomplete and potentially incorrect.
In a recent article I authored for Markus Dubber and Tatjana Hörnle’s Oxford Handbook of Criminal Law, which I creatively titled Complicity, I set out in greater detail why I suspect that the received wisdom about purpose in the ICC Statute might be misguided. To summarize (see pages 21 – 25 of the article), these reasons include:
- The ICC definition follows the US Model Penal Code – The ICC purports to follow the US Model Penal Code (MPC), but the MPC contains a provision immediately after its famous reference to purpose, indicating that “[w]hen causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” (see page 22 of the article)
- Consequently, the ICC should arguably be interpreted in keeping with the US Model Penal Code – Several authors have argued that the ICC Statute should be interpreted like the MPC. If so, would this not entail reading the second aspect of aiding and abetting in the MPC into the ICC Statute? (see footnote 59 of the article). Note, in fairness to Sarah Finnin, her reference to this idea in her book is quoting Elewa Badar, “The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective” (2008) 19 Criminal Law Forum 473, 507.
- The drafting history of the ICC Statute confirms this reading – David Scheffer and Donald Piragoff, who were involved in negotiating the provision in question for the U.S. and Canada respectively, indicate that, in essence, the reference to purpose was really meant to be synonymous with intention. Piragoff, for instance, has written that “aiding and abetting by an accused requires both knowledge of the crime being committed by the principal and some intentional conduct by the accused that constitutes the participation.” (See page 352 of this article)
- National understandings of “purpose” for aiding and abetting do not require a volitional commitment to the outcome of the crime – the relatively few national systems that adopt purpose standards for aiding and abetting do not interpret the term as requiring a volitional commitment to the consummated crime. These include New Zealand, Canada, Israel and perhaps most significantly, the United States (See page 25 of the article).
US Federal Criminal Law – In a recent US Supreme Court decision, the majority held that “for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.” Rosemond v. United States, 134 S. Ct. 1240, 1243 (2014) (emphasis added);
US State Law – In a very helpful recent doctrinal survey of state law in the United States, John Decker reports that only three (3) states within the United States have purpose standards for aiding and abetting that require a volitional commitment to the criminal outcome. See John F. Decker, The Mental State Requirement for Accomplice Liability in American Criminal Law, 60 S. C. L. Rev. 237 (2008).
Israel – also a “purpose” jurisdiction, but the leading case stipulates that “where the aider only foresees the possibility of the commission of the principal offense, the aider may be convicted if it is his or her desire that should the offense actually be committed, his or her act will facilitate its commission.” Itzhak Kugler, Israel, in The Handbook of Comparative Criminal Law 352, 370 (Kevin Jon Heller & Markus Dubber eds.) (citing the Israeli Supreme Court case of CA. 320/99 Plonit v. State of Israel 55(3) PD 22 ;
Canada – although the criminal code stipulates purpose as the required mental element for complicity, the leading case on the proposition states that “Parliament’s use of the term ‘purpose’ in s. 21(1)(b) should not be seen as incorporating the notion of ‘desire’ into the mental state for party liability, and that the word should instead be understood as being essentially synonymous with ‘intention’”. R v. Hibbert  2 S.C.R. 973.
New Zealand – § 66(1) of the Crimes Act 1961 states that “[e]very one is a part to and guilt of an offence who… (b) does or omits an act for the purpose of aiding any person to commit the offence” (emphasis added), but the Supreme Court interprets this in the following terms: “A party will be liable as an aider and abettor only if he or she had knowledge of the essential matters constituting the offence.” Mahana Makarini Edmonds v. R.  NZSC 159, para. 25 (emphasis added)
Given this history, I welcome critical engagement with the idea that the ICC standard for aiding and abetting should not be interpreted as requiring a volitional commitment to the criminal outcome. If so, what does purpose mean?
See No Evil
By James G. Stewart
“after Rwanda humanity cannot even boldly say “never again” or warn ‘lest we forget.’ When a Tutsi man asked in earnest, carefully thought out English, whether most New Zealanders know how his people suffered in 1994, I had to confess that I was not sure. He looked away quickly and said nothing, offering only a feeble half smile to hide his obvious disbelief”