All posts by James G. Stewart

The Argor Heraeus Decision on Corporate Pillage of Gold

Earlier this year, a Swiss federal prosecutor wrote a reasoned opinion declining to prosecute a company named Argor Heraeus for pillaging Congolese Gold. I am grateful to Bénédict De Moerloose at TRIAL in Geneva and Ken Hurwitz at the Open Society Justice Initiative for their blessing to post the prosecutor’s decision (hereafter “the Decision”) here. The original German version of the Decision and an English translation the Open Society commissioned are now available in the links in this sentence. To the best of my knowledge, these documents are not online elsewhere, although the prosecutor did make them public by sending them to journalists (see here) and to the parties to the complaint.

I thought to write a neutral and constructive legal assessment of the prosecutor’s decision given that, some years ago, I wrote a legal study of pillage as applied to natural resources (see the English version here and the French version here), as well as an academic article that used the fact of a formal investigation against Argor Heraeus as an illustration of an important new legal development (see here). For present purposes, my neutrality is ensured by the fact that I know nothing whatsoever about the veracity of the allegations in the complaint, and I certainly do not vouch for or endorse any statement of fact about this case in the Decision or elsewhere. Accordingly, I also cannot form an opinion about whether or not the conclusion is correct.

Instead, I want to offer a balanced legal appraisal of the prosecutor’s reasoning in this the first formal document to discuss corporate pillage of natural resources ever. As will become apparent, I consider that the bulk of the legal reasoning is excellent but it is occasionally slightly erroneous – to the company’s benefit as well as its detriment. I hope my reactions are useful to reflections about this and other pillage cases moving forward, especially for a separate new case against a Belgian businessman involving the alleged pillage of Sierra Leonean diamonds, which has just resulted in an arrest in Belgium.

I resist the temptation to rehearse the factual allegations against Argor-Heraeus since these are contained in the Decision itself. Instead, I focus my legal assessment on pillage alone, even though the back end of the Decision also considers money laundering. The paragraph numbers I use within my headings below correspond to the paragraph number used in the Swiss prosecutor’s Decision. I have also cross-referenced relevant portions of my work with the Open Society on pillage whenever possible in the hope of providing a resource for those who wish to pursue these questions in greater depth than I can offer here.

Para 5.1.2 – For Private or Personal Use

The Decision adopts the definition of pillage set out in the ICC Elements of Crimes, which include the requirement that “The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.” In the ICC Elements of Crimes, this particular element is accompanied by an asterisked footnote, which reads: “As indicated by the use of the term “private or personal use,” appropriations justified by military necessity cannot constitute the crime of pillaging.” I certainly understand that adopting this definition of pillage from a source as apparently authoritative as the ICC is attractive, but I have argued that this element of the definition of pillage in the ICC Elements of Crimes is not part of the crime of pillage and courts have vindicated this position.

In the Pillage Manual (see paras. 16-20), I set out how this “private or personal use” element in the ICC Elements of Crimes is: (a) not binding even on the ICC; (b) inconsistent with the exceptions set out in the Hague Regulations of 1907; (c) at odds with the vast majority of pillage cases post WWII, which involved prodigious pillage of natural resources to further the Nazi war machine, not for personal or private profit; (d) inconsistent with the case law of other international courts and tribunals that define pillage without referencing “personal or private use”, and (e) at odds with the explicit finding of the SCSL that “the requirement of ‘private or personal use’ is unduly restrictive and ought not to be an element of the crime of pillage.”

It is not evident that the issue played any real role in the ultimate result in the Decision, but legally speaking, the question matters a great deal because this aspect of the definition in the ICC Elements of Crimes arguably implies that armed groups can expropriate resources for military purposes during war, which I think is not correct save under very specific circumstances I set out in the Pillage Manual (see paras. 78-100). Although not especially pertinent here, the error is somewhat unfortunate in that it disseminates an inaccurate message about the significance of pillage for resource wars.

Para 5.1.2  – The Element of Force

Within the portion of the reasoning dedicated to defining pillage, the Decision also stipulates that “[t]o some extent it is also required that an element of force must be present during pillaging.” I do not agree that this phrase should be included in this reasoning insofar as it misleadingly implies that companies or the armed groups they purchase from must use force to commit pillage. While their operations certainly must be “closely related” to an armed conflict (see Pillage Manual, paras. 32-39), force is not an element of the offense of pillage itself. I explain the various reasons why below.

As support for its statement about pillaging requiring force, the Decision refers to in the ICTY’s Mucić Trial Judgment, which reads:

“While it may be noted that the concept of pillage in the traditional sense implied an element of violence [footnote 604] not necessarily present in the offence of plunder, [footnote 605] it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous.”

In my view, there are several problems with the prosecutor’s reliance on this statement in the Decision:

  • The use of force is not an aspect of the ICC Elements that the Argor Decision draws on earlier to define pillage. It seems methodologically inconsistent to rely on the ICC Elements for “private and personal use,” then disagree with them later without good reason;
  • There is a great deal of case law saying pillage and plunder are synonyms, and they are translated between French and English as such. (see Pillage Manual, paras. 10-14) None of these definitions require force;
  • To the best of my knowledge, the words “implied an element of violence” in the Mucić Trial Judgment have not appeared in any of the many pillage cases since this passing reference. It is therefore somewhat surprising that the language resurfaces here; and
  • Footnotes 604 and 605 in the Mucić Trial Judgement provide very weak support for the proposition in any event. They are nowhere near evidencing virtually uniform state practice capable of supporting the proposition’s existence in customary international law, perhaps explaining why the passing comment in Mucić has not appeared elsewhere.

Section. 5.1.3 – Indirect Appropriation

A survey of case law governing pillage shows that the term “appropriate” in the ICC Elements of Crimes includes direct appropriation of property from the owner as well as indirect appropriation from an intermediary by purchasing stolen property (see Pillage Manual, paras. 40-49). The indirect appropriation limb of this interpretation is supported by the literal language of the ICC Elements of Crimes and at least twenty-six cases from post WWII trials, as well as conceptual first principles (see Pillage Manual, paras. 44-49). The Decision attempts to avoid these sources of authority by arguing that “[i]f even one accepts the view of STEWART, the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”

I address the argument about conversion rather than theft of the property that the second aspect of the sentence references further below. For now, I want to make a minor point, namely that the basis for indirect perpetration is not reducible to my view. As the Pillage Manual shows (see paras. 44-49), there are at least twenty-six incidents of indirect appropriation in the history of pillage cases, and generally, this extent of practice is more than adequate to ground an interpretation of customary international law in international criminal law. As I go on to mention, this interpretation of pillage is also conceptually coherent – although many legal systems disaggregate receiving stolen property from theft, others do not, and it is coherent to treat subsequent transfers of property as a new appropriation depriving the true owner of the property (see Pillage Manual, para. 48)

One recent development in the law of pillage that is not mentioned in my earlier work with the Open Society warrants mention here, too. If the prosecutor was concerned that the indirect appropriation principle could implicate consumers of products manufactured from pillaged conflict commodities, there were better ways of addressing that concern. The recent case law on pillage emanating from the ICC requires a “substantial” acquisition of property to constitute the crime, which helps address this concern. Although the term “substantial” is often difficult to define with perfect precision, there is no doubt that it should exclude consumers who purchase commodities constructed from pillaged natural resources. For reasons I mention below (see Section 5.2 below), the indirect appropriation principle is also important in addressing ex post facto causation in complicity.

Section. 5.1.3 – Conversion not Theft

As I mention above, the prosecutor avoids indirect appropriation as an aspect of pillage by arguing that, in any event, “the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”  Apparently, the gold remained the property of a third party intermediary while Argor was involved in refining it. I do not think this argument is quite as clear cut at the Decision suggests; regardless of whether a company actually acquires title, they may have converted the property and conversion may suffice for pillage. In Anglo-American criminal law, the difference between conversion and theft turns on whether the party misappropriating the property wants to take title in the property or not. Interestingly, if one looks at the table of cases at the back of the Pillage Manual (see Annex A), a number of WWII pillage cases involved conversion alone (note that some of the of the “coercion” references should read “conversion”). Conceptually, this makes some sense. The overarching legal test is whether the accused “appropriated” property without the consent of the owner; it makes no mention of whether the deprivation must be permanent or just temporary. In any event, this is a question that requires more careful research and thought. Moreover, in the abstract, an agreement to help an intermediary dispose of conflict gold could make a refinery complicit in the intermediary’s pillage if the agreement existed ahead of time, even if pillage does require an intention to acquire the property permanently. I address a closely related issue next.

Section. 5.2 – Causation in Complicity

The prosecutor makes an argument in the complicity section of the Decision that goes against the company, which I think is probably incorrect. The decision states that:

“The refining and hence increased value of the raw gold by [ARGOR-HERAEUS] is therefore causative of the pillaging by the FNI in the sense that, without the prospect of refining it to fine gold with a standardised gold context, pillaging, illegal trading and smuggling of raw gold would by no means have been a lucrative affair for the FNI.”

This argument is compelling on its face but it is actually an instance of ex post facto aiding and abetting, since the original pillage is complete by the time the company allegedly acquired the gold. There is an interesting discussion of this problem of ex post facto aiding and abetting in modern international criminal law. To make a longer debate short, you cannot make a causal contribution to a completed crime unless you had an agreement to do so ahead of time. Here, it is not clear that this is the case, meaning that the company could not be complicit in the original act of pillage by purchasing the resources subsequently absent some type of collaboration ab initio. 

Consequently, this type of allegation is probably better conceived as complicity after the fact, which was carved off from complicity proper in most jurisdictions over a century ago precisely because of these types of problems with retroactive causation. These problems are part of the reason why indirect appropriation (see Section 5.1.3 above) is such a significant aspect of the law governing pillage – it overcomes this difficulty with ex post facto aiding and abetting by implicating purchasers in a separate act of pillage. For these reasons, following the case law that mandates indirect appropriation was probably preferable to over-extending causation in the realm of complicity.

Section. 5.2 – The Mental Element for Complicity.

There is much discussion about the mental element(s) required for complicity, and I have written about these from a comparative perspective (see here) as well as at the ICC as part of an expert symposium held on this blog some months ago (see here). The Decision weighs in on these interesting discussions by, I believe correctly, insisting that “should have known” is too low for complicity. There are very few systems of criminal justice that consider negligence appropriate as a standard for accomplice liability and I believe it has no role in international criminal justice (although I believe it should be the central touchstone in business and human rights. See here). Nonetheless, there are still grounds for questioning the mental element for complicity the Decision adopts.

In particular, the Decision makes no mention of dolus eventualis. One of the leading Swiss textbooks on criminal law indicates that “Le complice doit avoir l’intention de favoriser la commission de l’infraction, mais le dol éventuel suffit.” (The accomplice must have the intention to favor the commission of the crime, but dolus eventalis suffices). See Michel Dupuis, Bernard Geller & Gilles Monnier, Code Pénal: Petit Commentaire (2012), p. 191. In other words, intention is required, but intention includes a cognitive appreciation of a risk plus a volitional “making peace” with that risk. It is somewhat strange that this standard does not feature in this analysis. I also understand that dolus eventualis was an issue in an earlier Swiss decision by a prosecutor when problems with “neutral acts” arose. Thus, it is unclear why no recognition of this broader mental element for complicity emerged in the Decision, and why so-called “neutral acts” did not reappear here either.

* * *

I hope the foregoing is somewhat helpful. Again, I am in no position to express an opinion about whether this Decision is rightly decided on issues of fact. My kind thanks again to Bénédict De Moerloose at TRIAL and Ken Hurwitz at the Open Society Justice Initiative for offering to post this material here.

JGS

Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: stewart@law.ubc.ca with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.

 

JGS

Blackwater’s Unsung Heroes


This piece is a cross-post from something Sara Grey and I published on Just Security several days ago (see here). Working on atrocities can be corrosive of one’s respect for humanity, so honoring incidents of moral courage is a healthy antidote. I remember one example of a junior soldier refusing his drunk (and armed) superior officer access to a warehouse of women at Čelebići prison camp in Bosnia for fear that the women would be raped, but this is an especially striking story of moral courage, too. Note that deliberately, we have never said anything about our perception of the guilt or innocence of the four Blackwater guards tried in Washington D.C., even though we collectively sat through the whole trial. I am grateful to Matt Murphy and Adam Frost for their kind emails to me since we originally posted this.


In a recent discussion of newly released memos on torture in the War on Terror, David Cole has surmised that “had anyone had the temerity to say no, the program almost certainty would have halted.” Likewise, in an excellent two-part blog (here and here) a decade after the Abu Ghraib scandal, David Luban cited Hannah Arendt’s observation that “most people will comply but some people will not,” before lauding those who never lost their moral bearings in America’s decent into systematized torture.

Some time has passed since four Blackwater guards were convicted last October of killing numerous unarmed civilians at Nisour Square, Baghdad. Understandably, the trial and verdict attracted a great deal of media attention, but something very important, paralleling the concerns that preoccupy Luban and Cole, has gone entirely unnoticed in the aftermath. Some people within that Blackwater unit said “no,” and maintained that position in the face of tremendous opposition.

Based on public perception, one might be tempted to think that nothing noble happened amongst the group of Blackwater guards at Nisour Square that afternoon. That impression is wrong. On the contrary, three members of Blackwater’s Raven 23 team who deployed that day displayed tremendous moral courage during and after the massacre. Without them, the death toll would likely be higher and there would almost certainly have been no trial or convictions. For this reason, we must remember, honor and celebrate their moral courage and humanity.

When Raven 23 set out from the Green Zone on September 16, 2007, Mark Mealy, Matthew Murphy, and Adam Frost were in the first two of four armored vehicles. According to their own testimony at trial, they watched in horror as their mission quickly transformed into what Murphy later called “the most horribly botched thing I’ve ever seen in my life.”

Matthew Murphy, now a policeman in Boston, was a rifleman in the Marines for two years before joining Blackwater in Iraq. During the trial, he testified that he heard gunfire from his teammates, then looked over his left shoulder to see one of them firing grenades at a white Kia, before others also turned their machine guns on civilians in a traffic jam. On the stand, Murphy bravely contradicted his teammates who said that they regretted nothing, by testifying that he saw no incoming gunfire and perceived no threat.

After the ordeal subsided, the Blackwater convoy left Nisour Square to the North against the flow of traffic, in what prosecutors described as like trying to enter a football stadium at the end of a game while the crowd is pouring out to the parking lot. During this obstructed exit, Murphy signaled to some children to get down, out of fear for what his teammates might do. It’s hard to say in hindsight what might have happened if he hadn’t done this, but given how events unfolded that day, there are strong chances Murphy prevented more unnecessary casualties.

Later, two cars blocked the convoy’s path, so Murphy directed the cars to turn around. When one of his teammates, Paul Slough, opened fire on the vehicles anyway, Murphy yelled, “Cease fucking fire!” As a result of his intervention, the injured driver was able to drive away, unlike so many others that afternoon. Needless to say, those legal advisers Luban and Cole have discussed were not in a war zone, surrounded by armed colleagues who had demonstrated the capacity to shoot people who posed no threat to them.

Murphy was not alone. Mark Mealy joined Blackwater after ten years in the Army, six of which were in active service. After retiring from the Army, he joined the National Guard with hopes of completing post-secondary education, but when his National Guard unit deployed to Iraq in 2003, his plans changed. After his Guard deployment, he worked for several private contractors in Iraq, eventually took a position with Blackwater, and in a stroke of exceptionally poor fortune, found himself in one of the firm’s armored vehicles in Nisour Square during that terrible fifteen minutes.

When the chips were down, Mealy was also on the right side of Arendt’s divide. After returning to base, he convened a meeting in his room, where he and the others we mention here confronted their teammates, saying they’d seen people “murdered out there.” Predictably, this did not go down well. The team leader barked that they needed to find a new line of work if they had a problem with what had happened. After that, the defendants gave Murphy, Frost, and Mealy the “stink eye,” and one later told Frost, now a policeman in Phoenix, that things might get rough for him around the base.

Undeterred, these three men jointly approached their commander, Chuck Pearson, complaining of “excessive use of force” and “reckless conduct.” At trial, Pearson testified that in all his years in the armed forces, he’d never seen a group of soldiers so disturbed by their own unit’s actions: the three men seemed to be in shock and Frost was crying. Revealing this emotion at trial was also an act of bravery for a soldier, but in this very human reaction, we also find something to cherish and honor.

Several days after these men met with their superior, Blackwater ordered all members of this team to report to the US Embassy in Iraq to provide confidential statements about what transpired at Nisour Square. When these statements were subsequently leaked to the public, Adam Frost began a diary to memorialize events as they really took place. In one entry he wrote:

As of now, 5 days after the event, it seems that the [State Department] and [Blackwater] are locked into their stories and the real story will forever stay shrouded from the public … .”

That this premonition did not come to pass is largely the result of these few men; Murphy, Frost, Mealy, and others who bravely provided essential testimony in the landmark trial in Washington, DC. They also paid a price for doing so. In its rousing closing statement, the prosecution told the jury that Murphy, Frost, and Mealy “were called rats and they were looked down upon by the contractor community. And they nonetheless did it. Why? Because they were courageous enough and strong enough to know that that was wrong. That was slaughter.”

None of these men worked for Blackwater again. Murphy signed another contract with the company soon after the harrowing incident, and then went on leave. While away, he got a phone call from his employer telling him that, because of the incident, he was “suspended indefinitely.” Frost also went on leave and was fired a week later. As for Mealy, he simply told the jury that he was done with Blackwater’s Raven 23 Unit.

All of this, of course, suggests that these men deserve recognition alongside the other moral heroes David Luban rightly praises. Martin Luther King, Jr. once said, “courage is an inner resolution to go forward despite obstacles.” In the face of these sorts of pressures in warfare, many would play down their conscientious reactions and say nothing, especially given the dangers they themselves faced. Murphy, Frost, and Mealy “went forward” with their consciences and emerged from this horrendous saga as unsung heroes deserving of our praise and respect.

In reading David Cole’s new reports, it’s hard not to feel like the American leadership in the War on Terror has, on these crucial issues at least, had far less moral courage or humanity in far easier personal circumstances. Perhaps that makes them all the more blameworthy.

Commerce and Atrocity: The Elephant in the Room

David Bosco has written a wonderful book. Rough Justice reveals past events, distant and less so, that will be entirely new to even seasoned experts in international criminal justice. Where readers are familiar with the controversies he addresses, Rough Justice provides far greater detail than most were aware of. All of this information is masterfully put together in an elegant narrative, and couched within a conceptual framework that helps orient thinking about the relationship between the International Criminal Court (ICC) and Great Powers. The book will, no doubt, be read and reread by broad audiences as this ambitious experiment with supranational criminal justice unfolds over the coming decades.

At the same time, his book will likely serve as a convenient proxy for the criticisms of all those who hoped international criminal justice might be other than it is presently. In this vein, my reaction is more a complaint against the institution he describes than his treatment of it.

To my mind, there are all sorts of reasons to celebrate the arrival of the ICC, and much need to think creatively about strategies for overcoming its obvious shortcomings. I am particularly concerned by the double standards in enforcement Bosco seizes upon, and the injustice(s) these entail. Unlike other critics, I also believe that incremental acculturation is possible, whereby national courts come to take up the slack where the ICC’s power peters out. In other words, I believe that to some extent, critics of the ICC need to take Kathryn Sikkink’s “justice cascade” more seriously, and look to national systems to produce more of the distributive equality they seek. The ICC plays an important part in this cultural shift, such that its efficacy cannot be measured by referencing the impact or politics of its own trials alone. I am, for example, currently writing about the Blackwater trial that took place in Washington D.C. this past summer, in part because I intuit that, culturally speaking, this highly improbable case cannot be neatly separated from the massive rise of criminal accountability for wartime atrocity over the past two decades.

This said, the Blackwater trial does point to something highly regressive about the brand of international criminal justice on offer in the ICC’s own courtrooms. For all the reasons to celebrate the great leap forward in supranational criminal accountability over the past years, there is something strikingly backwards in all this progress too, which does not register in Bosco’s excellent book. The responsibility of businesspeople for atrocity was front and center at Nuremberg, but mysteriously, it has vanished since.

To begin, let me dispel the common misperception that companies are necessarily passive auxiliaries in bloodletting that is not of their making. In 1932, the chairman of the chemical company IG Farben allegedly paid a substantial bribe to have Hitler installed as Chancellor. Even the Nuremberg judgment itself indicates “in November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” Even before the end of the war, the Allies were adamant that if there were trials, international criminal responsibility would reach out and touch businesspeople, too: attempts at a second Nuremberg trial for just “industrialists” were only narrowly defeated. When these trials took place within zonal trials, a relatively large number of businesspeople were tried and convicted for pillaging natural resources and complicity in atrocities.

Why not now? There is a veritable flood of information about corporate implication in the very African atrocities the ICC is focused on. Security Council appointed panels of experts have documented connections between commercial actors and atrocities in modern African conflicts over which the ICC enjoys jurisdiction, NGOs like Global Witness and Human Rights Watch have mounted detailed investigations into legally comparable corporate war crimes in the very regions ICC defendants come from, Hollywood makes movies like “Blood Diamonds” and “Lord of War” to bring these realities to a wider public, all range of academics point to the perversity of the Resource Curse, the Alien Tort Statute cases against corporations nearly fall over entirely leaving quasi-total corporate impunity globally, the UN Special Representative on Business and Human Rights describes international criminal law as “[b]y far the most consequential legal development” in the field of business and human rights, but the ICC rests idle.

In fairness, Moreno-Ocampo did issue warnings about the serious possibility of these sorts of cases during his time as the ICC’s Prosecutor. In 2003, he reported that “there is general concern that the atrocities allegedly committed in [the DRC] may be fuelled by the exploitation of natural resources and the arms trade, which are enabled through the international banking system.” Later he reiterated that “various reports have pointed to links between the activities of some African, European, and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo… Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade.” The statement then cautioned that “[t]he Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries.” In a conference I organized in The Hague in 2010 together with Larissa van den Herik and the Open Society Justice Initiative, Moreno-Ocampo again expressed a desire to move these cases forward.

The failure to make good on these promises, and their absence from Bosco’s otherwise wonderful text, leaves something of an elephant in the room.

One does not need to travel all the way to Afghanistan or Georgia to observe the political double standards Bosco sees animating the ICC’s operation in action. At the same time that the ICC has indicted Omar Al-Bashir and Jean-Pierre Bemba with pillaging other types of property from Sudan and the Central African Republic, it has turned a blind eye to the mountain of evidence that foreign companies were responsible for precisely the same war crime in the same region, with far worse consequences for local populations. In private conversations with ICC prosecutors, they either claim that they wish to focus on “just the basics” or that “these sorts of cases will be exceptionally difficult to prove.” With respect to the former, I am not convinced that the “basics” preclude addressing one of the means or motivations for terrible bloodshed. As for the latter, I have to doubt the veracity of the claim, partly because Dutch prosecutors, who have brought these cases, report that acquiring actionable evidence against businesses is often easier than in regular cases involving political or military leaders.

As I point out in a separate blog with the ICTJ today, trying these sorts of trials may actually make the Prosecutor’s explanation for her unique focus on Africa more plausible. Presently, the Court justifies its singular geographical focus by citing the number of victims involved in African conflicts. In philosophy-speak, however, the underlying argument is unsound—it assumes that only Africans are responsible for atrocities in Africa. That assumption is patently false. Aside from overlooking the tremendous variety of sources I reference above, it also plays down the long history of foreign corporations plundering African resources that dates to colonialism and the equally longstanding tradition of supplying weaponry to African conflicts without question. Even leaving these two sectors to a side momentarily, what of the history of offending by private military in Africa, à la Blackwater in Iraq more recently? If the prosecutor investigates foreign businesspeople implicated in African atrocities, she could correct for the fallacious assumption in her office’s poor explanation, distance her institution from the history of colonialism, and partially diffuse the African Union’s critique of the ICC without focusing on alternative geographies.

Her response would become: “when western nationals are implicated in atrocities of this magnitude in Africa, we hold them responsible, too.”

This brings us full circle, back to national trials. By even gesturing at the possibility of these sorts of cases, Bensouda could alert states and their publics to the need to prosecute their own businesspeople in national courts, in appropriate cases. In so doing, she would be nurturing the cultural shift I point to at the outset; gently instigating a kind of “justice cascade” for a set of actors that have proven spectacularly successful in insulating themselves from modern international criminal law. These are not small peripheral issues, they are often important factors in reproducing atrocity, have powerful symbolic resonance, and therefore go to the heart of international criminal justice’s legitimacy. Thus, I would have been all the more enamored with David Bosco’s excellent book if it had also announced the elephant in the room, observed the curiously regressive character of contemporary international criminal justice on this score, and contributed to shifting public opinion regarding commerce, atrocity and accountability.

 

 

Symposium: Whither the International Criminal Court?

The International Criminal Court (ICC) finds itself in an interesting predicament. On the one hand, it purports to function as an independent mechanism for holding those responsible for atrocities to account, regardless of their nationality, political allegiances, or geopolitical significance. On the other, the institution is embedded in international law first and foremost, which is itself part and parcel of an international legal order where sovereign equality is only formal.

David Bosco has written an excellent book on the ICC’s initial years navigating this tension. The substance of the book, called Rough Justice: The International Criminal Court in a World of Power Politics (OUP, 2014), is ably introduced by the various participants in this symposium, so I will resist the temptation to rehearse its full argument now. In short, Bosco assesses the ICC’s first years within a framework that questions the extent to which powerful states have marginalized, controlled or accepted the Court, pointing to an important degree of “mutual accommodation.”

There is much to commend about this excellent work, which will no doubt animate discussions about international criminal justice generally and the ICC specifically for some time to come. I hold my own applause for my substantive contribution later in the symposium, but I do want to mention at the outset that Bosco’s text has prompted me to add another line to my blogging manifesto, namely, a commitment to showcasing aesthetic excellence on this site. His book is beautifully written.

In terms of format, the symposium will involve a leading group of experts. In keeping with my commitment to promoting conversation between scholars, members of civil society and practitioners, I have invited a former Prosecutor of the ad hoc tribunals, others who have worked as senior practitioners, two very prominent members of civil society, and academics from leading institutions. The resulting group of experts come at these issues from different starting points and offer contrasting perspectives.

The result, I hope you’ll agree, is a truly fascinating set of reflections on this historic institution.

A New Instrument on “Gross” Violations? Enthusiasm and Apprehension

I join this fascinating discussion to offer reflections on Professor Ruggie’s interesting proposal for “a legal instrument addressing corporate involvement in the category of “gross” human rights violations.” As someone whose work focuses on the relationship between commerce, atrocity and international criminal law (“ICL”), I applaud Professor Ruggie’s consistent expressions of interest in this relationship, and his desire to play a proactive role in moving this type of accountability forward. His desire coincides with a range of new initiatives that share similar aspirations: in one recently launched by the International Corporate Accountability Roundtable (ICAR), of which I am a member, a group of experts plans to explore the sorts of problems (legal, investigative and practical) that impede prosecutions of these sorts. In another, recently announced by the United Nations Office of the High Commissioner for Human Rights, ICL will feature as one part of a wider and longer project investigating best practices in corporate accountability for “gross” human rights abuses.

Neither of these twin initiatives advocates for the promulgation of a new treaty; both contemplate building frameworks similar to the UN Guiding Principles, that work with pre-existing legal tools. By contrast, the idea of a “new instrument” attempts to break new ground, presumably in treaty form. A treaty would certainly offer a number of benefits. A single instrument addressing corporate responsibility for “gross” human rights violations could help in producing clear, uniform law that provides helpful guidance to businesses and human rights advocates alike. A treaty could identify and confront barriers to justice, including the cost of financing litigation, difficulties with investigative capacity or the absence of a regulatory level playing field globally. It could also be helpful in recommending divisions of labor between home and host countries, such that everything from evidence acquisition to conduct of trial and enforcement of sentences is better coordinated. All of these features are salutary, important, and worth pursuing.

This said, I want to express a series of countervailing dangers involved in codifying a new instrument on corporate responsibility for “gross” violations of human rights, in the hopes that attempts at generating a legal instrument like this are appraised of the possible pitfalls that await. In a way, my concerns are reminiscent of David Kennedy’s Dark Sides of Virtue—the idea that while human rights initiatives frequently bring about a great deal of good into the world, at a very minimum, they must make conscious and address (if possible) their potential downsides. In what follows, I expand on several of these, in ways that I hope act as a friendly caution to those involved in this laudable project.

The first concern stems from how we understand “gross” violations. I appreciate “gross violations of human rights” is something of a term of art in the field, and that the UN General Assembly and others have adopted definitions that equate “gross” violations with ICL to avoid the ambiguities of separating more fundamental human rights from less. Whether ICL and “gross” human rights overlap perfectly or just substantially, there is a sense that these two sisters of international law are again lifting one another up. If some (not Moyn) see Nuremberg as the genesis of both international human rights and ICL, perhaps modern initiatives focused on civilizing business, such as this new instrument, can replicate the catalytic effect between the two fields. Personally, I see this possibility in positive terms, but we should also pause to observe the potential downsides.

For one reason, ICL is a relatively poor vehicle for enforcing economic, social and cultural rights. In its early years, the ICTY flirted with including violations of economic, social and cultural rights in its understanding of persecution as a crime against humanity, but that approach has received a mixed welcome, and by and large, is not close to adequately protecting systemic violations of economic, social and cultural rights. The mismatch between ICL and “gross” violations of human rights would cut the other way too. It’s unclear for instance, whether pillage of natural resources (a primary mechanism for modern conflict financing) constitutes a “gross” human rights violation within the meaning this new instrument would adopt, even though it is unquestionably an international crime that has deleterious consequences for civilian populations in many corners of the world. From the foregoing, one is left wondering whether a focus on “gross” human rights violations will do full justice to human rights or ICL?

And how about national law? Over the summer, a colleague and I sat through the entire Blackwater trial in Washington D.C. (see initial commentary here and a presentation here), in part, because we saw it as a pivotal moment for the idea of home states holding their own corporate officers accountable for conduct that amounts to international crimes perpetrated in foreign war zones. I say “amounts to” because the Blackwater trial was most striking in one respect: it made not an iota of reference to international law at any point. This purely American criminal trial could have constituted a corporate war crime case if charged as such, but instead, the US Attorney’s preferred to employ different, local offenses in providing a judicial response to the gross (corporate) human rights violations that transpired in Baghdad that day.

Still, the Blackwater trial should still count as a judicial response to “gross” human rights violations by a corporation, no? The trial is a remarkable example of the accountability the business and human rights movement aspires to, absent only the reference to international law. Surely we aren’t so wedded to international law that we deprive it of this status. The question for the new instrument then becomes, how would a treaty governing business and “gross” violations of human rights address purely domestic trials like this, that make no mention of human rights of international crimes at all. Is there not a danger that the new category of “gross” violations obscures more than it clarifies?

Leaving the scope of this new treaty to one side, what of the implications for ICL of a new treaty governing “gross” violations of human rights? A new instrument could allow a wholesale departure from previous standards in ICL that already rightly implicate private actors. This anxiety isn’t purely academic—one of the reasons we do not see new treaties governing International Humanitarian Law presently is that the International Committee of the Red Cross (ICRC) knows full well that opening up the Geneva Conventions in a post-September 11 world will lead to a net diminution of humanitarian protections. Are we certain that a similar process will not transpire for “gross” corporate violations of human rights, in ways that push the two bodies of international law further underground rather than lifting them up?

One idea is that a new instrument governing corporate responsibility for “gross” violations of human rights could contain an entirely compartmentalized set of principles that apply to businesses and their representatives, leaving ICL entirely unaffected. Yet, this idea of a segregated regime could pose both symbolic and substantive problems. At the level of symbolism, why should there be a separate category for one set of actors, when they are already bound by pre-existing doctrine in ICL itself? Does this preferential treatment imply that business is normatively or morally privileged? Although I’m sometimes tempted by Jules Coleman’s argument that markets deserve special moral deference because they stabilize notions of the good that we cannot otherwise agree on, overall, I am reluctant to venerate businesspeople over and above politicians, military leaders or other groups capable of committing these crimes.

I suspect that part of the response to these symbolic concerns is that the new instrument will really just focus on harmonizing disparate standards particular to corporations. The problem with this idea is that ICL itself is disparate already, so one can’t harmonize some standards (like complicity) without cutting across pre-existing law. Consequently, if the concern is harmonization, perhaps the task is to harmonize ICL as a whole, or at least portions of it that most closely affect these debates. Over the past years, I have argued that we should adopt a single concept of blame attribution universally (including, but not limited to, complicity) to address some of these problems. Since then, I have set out a set of arguments (see here) for this type of global standardization. Although commerce was a major driver in my thinking, I consistently pitched this claim to the entire field of ICL. The idea of a new instrument to do or encourage this for just business cases is less ambitious, but it does fragment the discipline.

In addition, equating “gross” human rights with ICL brings business and human rights face to face with transitional justice. Up until this point, much of this discussion has assumed a very juridical response to corporate malfeasance. For various reasons I won’t labor here, I believe that judicial responses to this problem are critically important, especially given the immense culture of impunity presently in place. Nonetheless, a number of scholars are less enthusiastic about the fetishization of legal accountability that ICL has brought about. To repackage their concerns into the present context, a new instrument governing gross violations of human rights should not preclude a Truth and Reconciliation Commission instead of a criminal trial, in response, say, to corporate implication in Apartheid South Africa. This poses an interesting tension, however, since we are unequivocally calling for greater judicial-type accountability, including overcoming legal barriers that tend to inhibit it. Those negotiating a new instrument will have to confront this inherent tension.

This brings us to the dangers of “crowding out”. A focus on “gross” violations of human rights could undermine Professor Ruggie’s excellent work on corporations and human rights simpliciter. A new and exciting scholarship is emerging in ICL lamenting the extent to which ICL crowds out other agenda. The moral intensity of atrocity impedes our vision of political economy, colonial history, and human rights performance, all of which also play important causal roles in reproducing mass violence. We simply forget about these other contextual factors in our enthusiasm for sensationalized trials (which arguably do too little to deal with root causes). I have misgivings about this “crowding out” thesis as a critique of ICL (see here), but it is helpful in reminding us of the need to pursue solutions to the problem of business and human rights generally at the same time we develop new tools for the worst types of violations. In other words, our enthusiasm for a new instrument on corporate responsibility for “gross” human rights violations should not obscure the need for deeper structural change and our commitment to pursuing it.

Overall, with respect to “gross” violations at least, one wonders whether the better approach is just to focus on what we already have—the relationship between current ICL and commerce remains very poorly understood, not to mention very infrequently enforced. To be sure, there are upsides to the treaty approach that may outweigh the potential pitfalls I point to; my enthusiasm may win out over my apprehensions depending on the precise parameters of a draft treaty. But however this particular initiative plays out, greater emphasis on the relationship between extant ICL and business will illuminate the possibilities for accountability that already exist, without inviting States back to a negotiating table. In this respect, too, the possibility of a new instrument should not blind us to the work already at hand.

Symposium: Business and Human Rights – Next Steps

The Business and Human Rights movement finds itself at interesting crossroads.

On the one hand, there is a push to create a binding treaty governing business and human rights. In June last year, the United Nations Human Rights Council resolved to “to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights” (see here). Quite what the parameters of this treaty might be, how it would address standard issues like extraterritoriality, and its relationship with overlapping initiatives and fields is still unclear, but the idea itself is momentous.

At the same time, there are several new initiatives that seek to address “gross” corporate violations of human rights and/or international crimes. Also in June last year, the United Nations Human Rights Council unanimously approved a parallel project “[r]equest[ing] the United Nations High Commissioner for Human Rights to continue the work on domestic law remedies to address corporate involvement in gross human rights abuses, and to organize consultations with experts, States and other relevant stakeholders”. The OHCHR’s program of work for this project, to which I will contribute, is available here.

Similarly, the International Corporate Accountability Roundtable has launched a separate but related project on corporate crimes that are linked to human rights abuses (see here). Whereas the OHCHR’s project focuses on “gross” human rights violations, the ICAR variant is concerned with corporate crime, including but not limited to corporate responsibility for international crimes. This project, that I’m also privileged to participate in, involves an Independent Commission of Experts comprised of Canadian Supreme Court Justice Ian Binnie, Alex Whiting at Harvard, Anita Ramasastry at the University of Washington and others.

Finally, all of these new undertakings exist in the wake of Professor John Ruggie’s groundbreaking work developing the Guiding Principles on Business and Human Rights. As is well known, in 2005, Professor Ruggie was appointed UN Special Representative to the Secretary General on Business and Human Rights. After six years of work, the United Nations Human Rights Council approved his Guiding Principles on Business and Human Rights. Together with helpful commentaries, these have created the dominant paradigm for processing corporate engagement with human rights, setting the backdrop for all these newer initiatives and programs.

But what sense to make of these projects as an ensemble? In particular, how do they sit with core philosophical, political and historical ideas about international human rights law generally? On a wider level, how do they relate to one another, cognate fields like international criminal law, or social processes? In this symposium, I invite some of the very best scholars in the world to address these questions. I start by posting Professor Ruggie’s closing plenary remarks to United Nations Forum on Business & Human Rights in Geneva on December 4, 2014. Then, I ask a set of leading commentators, from different disciplinary backgrounds and with varied political aspirations, to react to his statement. Finally, Professor Ruggie offers a response to these commentators.

In my opinion, the result is a rich scholarly exchange on issues of major contemporary importance. JGS

An Important New Orthodoxy on Complicity in the ICC Statute?

This post is exceptionally long by blogging standards, partly because my own views on aiding and abetting in the ICC Statute only crystallized during this symposium, but also because I wanted to offer a semi-comprehensive defense of this new position to close out the groundbreaking dialogue. I do not intend to post anything this long again for this bog, it just seemed important and timely in this instance. I’ve written this piece very quickly, without the time to seek input from the experts I sometimes speak for in this text. Accordingly, I have opened up the possibility for readers to write comments (click the ‘Leave a Comment’ button immediately below the title to this post or scroll to the end of it). I hope that the experts I cite, those I have unfortunately not been able to include in this debate, and interested readers from all backgrounds will improve my account by criticizing it.


Something very significant happened over the course of this symposium—a new, analytically compelling, and very consequential interpretation of the “purpose” standard of complicity in the ICC Statute may have emerged among a leading group of scholars. In this closing post, I offer a defense of this new definition, which I call orthodox now because I take it to be supported by the majority of the scholars that participated in this symposium and some who did not. Under the twelve headings that follow, I offer an argumentative synthesis of the debate, which begins with doctrine, addresses theory, then concludes with a set of residual points of disagreement that I hope will spark further research.

The ramifications of this new interpretation are significant.

I suspect that, like me, most judges, academics, and practitioners have entertained a doctrinally flawed and theoretically indefensible interpretation of “purpose” as a standard for accomplice liability in the ICC Statute for many years, which I hope this final post, together with the fine expert opinion upon which it is based, will help dispel. The new orthodox interpretation not only overturns reasonably firmly held scholarly and professional views to the contrary, it also countermands appellate decisions in US Alien Tort Statute cases that had drawn heavily on the ICC language, breaths new life into discussion about the role of complicity in business and human rights, and arguably adds fuel to the fire of those who believe that forms of responsibility in the ICC Statute are arranged hierarchically.

  1. The history of the Old Interpretation of the “purpose” standard

To recall, the English version of Article 25(3)(c) 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 (I call “the Old Interpretation” for the remainder of this blog), is that the “for the purpose of facilitating the commission of such a crime” denotes a volitional commitment to the consummated crime. An accomplice has to positively want the perpetrator to use her assistance to commit the crime. On this interpretation, cognizance of a criminal outcome that would certainly flow from one’s assistance is insufficient, with the consequence that indifference marks the dividing line between the ICC Statute’s “purpose” variant of complicity and the knowledge standard other international tribunals apply as a matter of course. In light of points made during this symposium, I now believe that this position is doctrinally inaccurate and theoretically indefensible.

Nonetheless, many (myself included) bought it hook, line and sinker. At the level of theory, we posited that the knowledge standard entailed a more communitarian notion of responsibility, whereas “purpose” was libertarian in construction. In practice, fever-pitch battles were fought between advocates of either side of a purpose/knowledge divide, culminating in a circuit split among US appellate courts on the topic within Alien Tort Statute cases and detailed discussion at various ad hoc tribunals. Although the ICC itself has not addressed the provision in great depth, it has indicated (somewhat confusingly) that “what is required for this form of responsibility is that the person provides assistance to the commission of a crime and that, in engaging in this conduct, he or she intends to facilitate the commission of the crime.” (see Goudé Confirmation Decision, para. 167). All the while, experts within the Business and Human Rights movement insisted on the knowledge standard of complicity in customary international law, watering down “purpose” as best they could.

I argue here that this assumed interpretation of “purpose” was incorrect, and that accordingly, bringing forth the more accurate (and far more defensible) meaning ushers in something of a Kuhnian paradigm shift for all these fields. In fact, if Markus Dubber is correct that the history of German criminal law is a history of “discoveries”, it strikes me that this collective undertaking has unearthed an interpretation of complicity in the ICC Statute that may also deserve that label.

  1. The important new orthodox interpretation of complicity in the ICC Statute

I start by setting out what I will describe as the new interpretation of aiding and abetting in Article 25(3)(c) of the ICC Statute that emerged most clearly over the course of this symposium (for convenience, I will call it the “New Interpretation” hereafter). According to this New Interpretation, the mental element of aiding and abetting in the ICC Statute should be interpreted as requiring a double test that is comprised of the following two elements:

  1. As for the fact of assistance, the accomplice must purposefully do that which facilitates the crime (or attempt to do that which would facilitate the crime) – The “purpose” requirement does not go to the consummated offense, it attaches to the act of facilitation. An accomplice cannot facilitate by negligence or recklessness, say by forgetfully leaving a gun on the kitchen table that someone else uses to murder a third party, but she is responsible for an international crime that requires intent (say deportation as a crime against humanity) if she purposefully supplies the weapon to the perpetrator, in the awareness that it will be used to forcibly displace civilians as part of a widespread and systematic attack in the ordinary course of events. For clarity, I use language in the heading above that deliberately steers clear of describing this requirement as “for the purpose of helping” or “for the purpose to assist”, because the words “help” and “assist” often (wrongly) imply some type of disposition towards to consummated crime when, as we will see below, this language is really just meant to reference the conduct that facilitates the crimes;

and

  1. As for the criminal result of the facilitation (whether attempted or completed), the accomplice must have whatever mental element is announced in the crime charged. Importantly, this second element arises from Art 30 of the Statute, which stipulates that mental elements require intention and knowledge “unless otherwise provided” elsewhere. Thus, because Art 25(3)(c) is silent as to the mental element for consequences of an aider and abettor’s assistance, we should use definitions contained in Article 30 to fill this void. After all, this is how we read all the other forms of participation in Articles 25(3)(a) through (d). Thus, because the vast majority of international crimes are silent as to the mental element, Article 30 stipulates that the accomplice is liable if “in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” A minority of crimes explicitly raise the mental element higher by demanding a special intent (think genocide, persecution, torture), whereas a select few drop it lower (think of the war crime of using, conscripting or enlisting children in Art 8(2)(b)(xxvi), which only requires that “[t]he perpetrator knew or should have known that such person or persons were under the age of 15 years.” This is negligence.) For these exceptional offenses, the mental element for the accomplice is “otherwise provided for” by the crime. For all others, the lowest standard of intention applies, meaning that an accomplice will be found guilty if he purposefully provides the assistance, “aware that it [the prohibited criminal result] will occur in the ordinary course of events.”

 In what follows, I defend this New Interpretation, first by aggregating and synthesizing selected arguments made by other experts in this symposium, then by taking issue with the idea that a literal interpretation of Article 25(3)(c) necessarily leads to any particular conclusion. I go on to show how experts in our symposium might justifiably reach this new reading of the provision based on a range of factors that include the full structure of the US Model Penal Code and the negotiating history to the ICC standard. Finally, I argue that the Old Interpretation is theoretically indefensible whereas the new is not, even if this leaves a set of residual questions for further debate.

  1. Through different routes, the majority of experts confirm that, doctrinally speaking, “purpose” means the New Interpretation

 Here, I simply want to highlight how and to what extent our various discussants in this symposium support the New Interpretation. As you will see, they endorse it with varying degrees of directness and commitment, to the point that some may wish to retort at the bottom of this post if I have misunderstood their position. Until then, I explain my reading of each of our discussants in order to transform the New Interpretation into the dominant orthodoxy on this issue—given that the symposium involves a significant cross-section of experts who have worked very extensively on these topics for a large number of years, I believe their shared opinion holds great weight in this regard.

  • Thomas WeigendThomas Weigend’s contribution is a masterpiece. Later, I show how one of his arguments is a genuine breakthrough for the theory of complicity, which cuts through hundreds of pages in the (Anglo-American) literature on the topic. Leaving theory to one side momentarily, doctrinally speaking, Weigend is a powerful and explicit advocate for the New Interpretation I highlight here. His paragraph on the topic is worth re-quoting in full:

“The Statute speaks of “the “purpose” of facilitating the commission of such a crime”; the assistant’s “purpose” thus is not the crime but the facilitation. This means that the assistant’s objective must be to facilitate the act of the main perpetrator; but her will need not encompass the result of the perpetrator’s conduct. For example, if an arms trader sells weapons to a dictator, he will be punishable only if he does so with the “purpose” of facilitating the dictator’s use of armed force; but the fact that the armed force will be used against unarmed civilians and will therefore constitute a crime against humanity need not be the arms dealer’s “purpose” (although he needs to know about that particular use in order to be liable as an assistant under Art. 30 of the ICC Statute).”

Although none of the other authors employ wording so closely attuned to the New Interpretation, I believe they all offer analyses that support it. Below, I synthesize portions of their thinking that I read as supporting Weigend’s interpretation in an attempt to at least partially substantiate my claim that this represents the new orthodoxy in the hermeneutics of this provision within the ICC Statute.

  • Flavio Noto – Noto concludes his excellent post by stating that “a volitional commitment requirement for aiding and abetting [is] redundant and inappropriate.” This conclusion comprises both normative and doctrinal components, but focusing on just the doctrinal limb for now, he is of the opinion that “there is merit in suggesting that proof of certain knowledge fulfills the mens rea required by Article 25(3)(c)”. For most international crimes, this position squares with the language of Article 30, which requires, as a minimum, that an accomplice is “aware that it [the perpetrator’s crime] will occur in the ordinary course of events.” This terminology is as close as one gets to “certain knowledge of future events” (Noto’s term), meaning that Article 30 provides a powerful doctrinal grounding for his argument. Personally, I would argue that the mental element for accomplices should also vary for the small number of international crimes that require more or less than intention, in order to stay true to the “unless otherwise provided” language in Article 30, but I see counterarguments, and this is perhaps a topic for further research. The upshot is that Noto rejects forcefully a strong “purpose” standard, and embraces an interpretation that very significantly overlaps with the New Interpretation I offer here.
  • Sarah Finnin & Nema MilaniniaThis joint contribution to our symposium adroitly places the “purpose” standard in context, reasoning that “an additional ‘“purpose”’ requirement is problematic for a number of reasons”. Although their contribution raises a number of very helpful points that feature elsewhere in this synthesis, they limit they argument about interpreting the “purpose” standard in the ICC by arguing that knowledge of a particular outcome will usually allow courts to infer “purpose” absent other compelling explanations, and that a “purpose” may be one of many rationale for the accomplice’s actions; it need not be the sole Because Finnin and Milaninia’s contribution is more directed to a wider context than technicalities of interpretation, one cannot find anything overtly supporting the New Interpretation in their helpful contextualization. Nonetheless, nothing they say is obviously inconsistent with the New Interpretation, and much of their reasoning supports it in spirit
  • Cassandra Steer – I am not entirely sure whether she would agree with me, but I read Cassandra Steer’s contribution as consistent with the new definition I argue for. Steer defends the so-called compensation theory, which is the traditional rationale for elevating the mental element for complicity to a strong notion of “purpose”, viz. a volitional commitment to the criminal outcome. The rationale for this compensatory move derives from the relative weakness of the accomplice’s physical contribution as compared with that of the perpetrator (I return to this argument later). However, I read her use of this argument as defending the idea that “purpose” should go to the act of facilitation (not the consummated offence), in part because Cassandra helpfully points to the possibility of “double intent”, but predominantly since she ultimately concludes that in interpreting aiding and abetting in the ICC statute, “it may be possible to include knowledge, willful blindness or dolus eventualis, especially since in civil law jurisdictions these all amount to gradations of intent.” Therefore, “purpose” must define facilitation, whereas intent goes to results. If this is a fair reading of her, her position coincides with the New Interpretation.
  • Adil Ahmad HaqueHaque’s post affirms the New Interpretation very directly, if we read him as endorsing one of the possibilities he raises, namely, that “the drafters [of the ICC Statute] intended to track the MPC.” In particular, he argues that “[a]t the first step, we apply 2.06(3) to determine whether the defendant is an accomplice to the perpetrator’s conduct, ie, if the defendant aided the perpetrator with the “purpose” of facilitating the perpetrator’s conduct. Only at the second step do we ask whether, in addition, the defendant had whatever mental state with respect to the results of that conduct is required for commission of the crime. So 2.06(4) adds to, and does not subtract from, the “purpose” requirement of 2.06(3).” On the assumption that States meant to incorporate the whole MPC scheme into the ICC standard and used Art 30 of the ICC Statute to do the work the MPC assigned to 2.06(4) (see below on legislative intentions and the relevance of the MPC), I take Adil as an explicit advocate of the New Interpretation.
  • Elies van Sliedregt and Alexandra Popova – In their contribution to this debate, these authors too begin by “agree[ing] with James Stewart’s initial intuition, and the conclusions reached by others in this series of posts, that interpreting Article 25(3)(c)’s reference to “purpose” as requiring that the accomplice share the principal’s intent would set too high a threshold for responsibility.” However, they also opine that “it is self-evident that [purpose’s] inclusion in Article 25(3)(c) has the effect of displacing the application of Article 30.” While I would agree with respect to the facilitation, I (and others who support the New Interpretation) consider that it does not do so with respect to prohibited results. They may share this view—they go on to advocate for a double intent that is analogous in form to that contained in the New Interpretation, and a clear rejection of the old dominant interpretation. van Sliedregt and Popova argue that “purpose presupposes knowledge of the principal’s intent coupled with voluntariness, or will, to be party thereto.” All that is required to merge this language with the New Interpretation is to understand their “will to be party” as a purpose to do that which facilitates and their “knowledge of the principal’s intent” as an intention to bring about the criminal result, relying on Article 30 of the ICC Statute to enunciate the meaning of intent (which, of course, includes “aware[ness] that [the criminal result] will occur in the ordinary course of events,” which their “knowledge of the principal’s intent” could help prove).
  1. Other leading academics support the New Interpretation

 I describe the orthodoxy I believe emerged over the course of this symposium as new, but it is really only its rise to prominence that is especially novel. In truth, a number of leading experts in the field of international criminal justice had already advanced this interpretation, or something close to it, well before these debates. I take this opportunity to summarize some of this pre-existing expert opinion. Usually, views on the question are relatively concise, so I content myself in citing them verbatim then offering minor explanation where necessary:

  • Albin Eser – Albin Eser is a leading theorists of international and comparative criminal law, who has served as the Director of the Max Planck Institute for Foreign and International Criminal Law in Freiburg and an ad litem judge at the ICTY. Well before this symposium, he argued for the New Interpretation. His argument is also worth quoting at length and requires no commentary on my part:

“As a general norm on the mental element, Article 30 of the ICC statute is not only applicable to the perpetrator, but other participants in terms of article 25(3)(a) – (e) of the ICC statute as well. This means that, in principle, the mental requirements for an accomplice are neither higher nor lower than those for the perpetrator, therefore a participant can in particular not be held responsible for mere recklessness or negligence either. Nevertheless, there are some particularities of complicity to be observed.

 In general, due to the accessorial nature of complicity, the accomplice must have a ‘double intent’, both with regard to his own conduct and with regard to the content and knowledge of the principal. In both relations the requirements of intent and knowledge of basically the same as with regard to a single perpetrator. This general line is not without exceptions, however, which in particular concern two groups: one being aiders and abettors who, beyond their general double intent, must act “for the “purpose” of facilitating the commission of [such] a crime” according to article 25(3)(c) of the ICC Statute.”

Albin Eser, Individual Criminal Responsibility, in The Rome Statute Commentary, pp. 933-934

  • Kia Ambos – Although Ambos does not argue for the New Interpretation quite as explicitly as his compatriot, I read him as supporting it implicitly. Ambos argues that:

“it is important to note that this higher subjective threshold (‘“purpose”’) only applies to the relation between the contribution and the execution of the crime (‘facilitation’). With regard to additional mens rea requirements, for example, the ‘intent to destroy’ in article 6, it suffices for the assistant to be aware of the perpetrator’s special intent, but he need not himself possess this intent.”

(See Treatise on International Criminal Law, p. 166).

I hope Professor Ambos will correct me if I misread him, but I take his reasoning as oblique support for the New Interpretation. If “purpose” only goes to the facilitation, then the mental element required for consequences of the criminal undertaking is derived from the crime itself. Ambos uses genocide as his example but I see no reason why the principle should not hold for crimes that do not have special intents. Also, I believe that awareness of the perpetrator’s intent could well be and often is an indicia of the accomplice’s awareness that a crime will follow from her purposeful assistance in the ordinary course of events.

* * *

I do not include other excellent authors here, many of whom have argued against interpreting “purpose” as entailing a volitional commitment to the consummated offence. This is partly due to a lack of space, but predominantly because they adopt a different interpretative strategy, at least in the scholarship I’ve seen. Nevertheless, I did want to acknowledge the exceptional work of Hans Vest and Doug Cassal in this regard. I suspect that these scholars may also support the New Interpretation, but here I have no basis to speak for them.

  1. The literal interpretation of the ICC Statute’s complicity provision is ambiguous

 My task now is to defend this new orthodoxy, in doctrinal terms and (very briefly) in theory. I start by attempting to defeat its main adversary in these debates: the argument that a literal interpretation cannot support any reading other than the Old Interpretation. Undoubtedly, the Old Interpretation represents a very plausible literal interpretation of Article 25(3)(c) of the ICC Statute, but I here suggest that there are at least four others, and that the language of the provision itself does little work in guiding our choice between the variants. To draw on Herbert Hart, the provision is more penumbra of doubt than core of settled meaning. So, given this literal ambiguity, I believe that the contextual factors I address in subsequent sections are most important in suggesting the New Interpretation as the most cogent interpretation of all the literal possibilities.

Taking this language at face value, one can certainly come to the conclusion that aiding and abetting in the ICC Statute requires that the accomplice positively want to facilitate the commission of the entire offense. This is the first and most common interpretation. Yet, it is far from inevitable. This Old Interpretation makes several assumptions that the text itself does not inevitably impose, namely that: (a) the term “purpose” attaches to “commission of such a crime”; (b) the English language version of the ICC Statute is the only version worth considering in these debates; (c) “purpose” relates to the accomplice’s subjective mental element; and (d) “purpose” signifies the overall objective, motivation, or rationale for the acts that gave rise to the accessorial liability. Each of these assumptions is contestable, and in a way, all of the experts in this symposium have rejected at least one of them.

So, the New Interpretation offers a plausible second literal reading by contesting assumption (a) above. Structurally speaking, Article 30 of the ICC statute creates a general provision that goes to all forms of responsibility (and indeed crimes) unless these forms of responsibility and crimes designate otherwise. This is evident from the beginning of Article 30 of the ICC statute, which starts with the famous words “unless otherwise provided for.” Mental elements for forms of responsibility are frequently “not provided for” in the ICC Statute, which means that Article 30 does all the work in generating the applicable mental elements. For example, article 25(3)(a) of the ICC Statute, which deals with perpetration rather than complicity, makes no mention of mental elements at all, since these are left to Article 30 in the wider ecology of the statute.

If “purpose” goes to the act of facilitation rather than the consummated criminal offense, Article 30 is binding in defining mental elements for results of this facilitation. Some may say that this effectively inserts the words “the conduct that led to” into the phrase “for the “purpose of facilitating the commission of such a crime” such that a new reworked provision actually reads “for the “purpose” of facilitating the conduct that led to commission such a crime”. One can certainly understand how critics might object that this insertion is inconsistent with the strictures of literal construction, but it is better to think of the additional language as a mere clarification of an inherent ambiguity, which is consistent with the origins of the provision, expert opinion, and basic principles in the theory of blame attribution. I say more about each of these below. For now, I merely want to highlight this second, imminently plausible literal reading of this provision.

It is too early to say, but some might offer third interpretations by reading the equivalent of “purpose” in other official languages of the ICC Statute. Over the course of this symposium, a translator from the ICTY contacted me inquiring about the French equivalent “en vue de,” especially when French is the ICC’s other working language. Robert Roth’s insightful remarks assimilated the phrase “en vue de” to the strongest form of intention, but regrettably, I failed to ask him to explore precisely how, why and when this takes place in Swiss criminal law. My failure is important, since it leaves open the possibility that, if translated as “with a view to,” the French might prioritize cognition where the English “purpose” seemingly implies volition. I include this question as one of a long list of issues that require further research (along with analysis of the equivalent terms in the equally authoritative Chinese, Russian, Arabic and Spanish versions of the Statute). For now, suffice it to say that linguistic variations undermine the thesis that a literal interpretation of “purpose” necessarily leads anywhere particular.

In a fourth possible reading, Thomas Weigend points to an interpretation that treats “purpose” not as a mental element at all, but as an objective characteristic of the facilitation. In effect, he points to scholars who contest (c) above. In describing the work of Antje Heyer and Katherine Gallagher, both of whom I respect as scholars, Weigend considers as “plausible” that “for the “purpose” of facilitating the commission can also be interpreted as an element of the actus reus of assisting: the assistant’s conduct must be specifically shaped in a way to be of use to the perpetrator.” I don’t want to rush to judgment on this idea and defer to Weigend’s much greater wisdom on what may or may not pass the plausibility threshold and certainly appreciate these scholars’ work, but at present, I do confess grave doubts about the coherence of this explanation. The point is, the text itself is entirely silent on the topic; it does not confirm or deny this reading. Thus, I include this interpretation here to undermine the thesis that a literal interpretation inexorably leads to the Old Interpretation of “purpose.” Analytically, that’s simply untrue.

Finally, what does “purpose” mean anyway? Even if the provision was clear about what “purpose” attaches to (facilitation itself or the consummated crime), whether the reference to “purpose” is a mens rea requirement or an objective characteristic of the facilitation offered, and how linguistic variations of the standard affect the concept’s meaning across different languages, we still have to come to some understanding about the interpretation we give the term. In this regard, Thomas Weigend brilliantly insists on a firm distinction between “purpose” and motive, downgrading common perceptions of “purpose” as requiring a singular, ultimate desire towards a defined end. In short, he contests assumption (d) above. Robert Roth, Elies van Sliegdredt and Alexander Popova join Weigend on this score. Some of them also employ the term “joint-intention,” which adds new valences to an interpretative smorgasbord that the language in Art 25(3)(c) does not restrain.

In my view, references to “intention” are a great source of confusion in the theory of complicity generally and its incarnation in the ICC Statute specifically. In the 1950’s, when the American Law Institute was developing the U.S. Model Penal Code under the direction of Herbert Wechsler, the leading American scholars involved in the project elected to abandon the term “intention” completely, because it lent itself to far too many meanings, many of which were more prone to spark profound and lasting dispute than produce nuanced standards to work with. If that was true within a single nation state, one can only begin to imagine how much worse the problem is internationally, especially when other nations understand the term differently and there is an attempt to insert it onto a provision governing complicity in the ICC Statute that makes no mention of intention at all. Again, however we resolve these ambiguities, the language of Art 23(3)(c) itself will not prove terribly helpful.

For all these reasons, literalism does not inevitably support the Old Interpretation, requiring us to look elsewhere for guidance in deciding between these options.

  1. The US Model Penal Code, from whence the ICC standard comes, confirms the New Interpretation

As I mentioned in my initial post that began this symposium, the US Model Penal Code (“MPC”) is widely regarded as the inspiration for Article 25(3)(c) of the ICC Statute. Despite this, a key provision within the MPC’s treatment of complicity has never featured in debates about the shape we give to aiding and abetting in the ICC context, despite the fact that it clearly militates in favor of the New Interpretation. I start this section by demonstrating the striking paralleled between complicity in the ICC Statute and the version in the MPC to substantiate the latter’s influence on the former. Then, I set out the missing provision in the MPC that has important but under-appreciated implications for our preference between the different literal interpretations of Article 25(3)(c) we just considered.

Two features of the provision governing aiding and abetting in the ICC Statute are dead giveaways of its provenance. The first, of course, is that the MPC speaks of “with the purpose of promoting or facilitating the commission of the offense…”, whereas the ICC Statute statute reads “[f]or the “purpose” of facilitating the commission of such a crime…” In a second dead giveaway of the MPC’s great influence, the ICC standard for complicity is triggered when an individual merely attempts complicity. Art 25(3)(c) of the ICC reads “aids, abets or otherwise assists in its commission or its attempted commission.” This is something of a scandal conceptually, but doctrinally, it is a very significant parallel with the MPC that has no equivalent elsewhere in international criminal justice and is very rare nationally. Like the ICC Statute, the MPC reads “aids or agrees or attempts to aid such other person in planning or committing it” (See § 2.06(3)(a)(ii) (emphasis added). So, both points of mimicry between the two instruments substantiate the received wisdom that the provision in the ICC Statute was largely a copy and paste.

And yet, there is one provision within the MPC definition that has not featured within these debates, despite the fact that it obviously favored the New Interpretation of the ICC Statute. As I set out in my original post, the very next provision in the MPC after the “purpose” reference on aiding and abetting reads 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). For several reasons, the import of this second missing provision is hard to overstate in the transition from the Old to the New Interpretation of complicity in the ICC Statute.

Most importantly, this missing provision supports the idea of reading “the conduct that led to” into the phrase “for the “purpose” of facilitating the commission of such a crime” such that the new reworked provision in total now reads “for the “purpose” of facilitating the conduct that led to commission of such a crime”. Tellingly, this is precisely the way one must read the MPC, too. Under the MPC’s definition, there is no way of making sense of the inclusion of this reference to the missing passage dealing with “causing a particular result” (§ 2.06(4)) without assuming that “with the “purpose” of promoting or facilitating the commission of the offense (§ 2.06(3)(a)(ii)) goes to the act of facilitation, not the criminal result. Adil Haque’s excellent post on the topic from an American perspective confirms exactly this reading (see in particular, his discussion of Riley v. State as a good illustration).

Let me deal with the retort that, “well, this is all very pleasant but these intricacies in the MPC don’t have much to do with the entirely separate international treaty that is the ICC Statute.” A number of my colleagues mentioned Article 31 of the Vienna Convention as requiring a plain meaning to these terms. As I argue above, to my mind, that argument does not advance the ball terribly much: the provision governing complicity in the ICC Statute is literally silent as to whether “purpose” goes to the facilitation alone or the consummated offense, some leading theorists think there is plausible ambiguity about whether “purpose” should be considered a mental element, linguistic discrepancies pose real challenges to literal interpretations, and “purpose” goes undefined in the Statute too. If Thomas Weigend considers this drafting “enigmatic,” literalism alone is unhelpful.

Therefore, Article 32 of the Vienna Convention is germane. To recall, Article 32 of the Vienna Convention refers to the “preparatory work of a treaty”, that can be employed to determine the meaning of a treaty provision when the literal interpretation “(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” The very fact that the interpretation of complicity in the ICC Statute gives rise to so much debate, that so many interpretations are available from the text, that so many of us who have spent years working on this topic seem to have got the wrong end of the stick up until now, and that at least one of the world’s leading scholars views the language as “enigmatic” would tend to prove that this wording is “ambiguous or obscure”.

As we saw a moment ago, I also read all participants in this symposium as concluding that the Old Interpretation of complicity in the ICC Statute (requiring a volitional commitment to the consummated offense) is “manifestly absurd or unreasonable.” On either count, I believe that reading the ICC standard of complicity in light of its forebear in the MPC finds a firm mandate in international law.

In fact, ignoring this genesis risks fundamentally distorting the concept. In light of the fact that the ICC standard incontrovertibly heralds from the MPC, that recourse to the MPC offers a compelling explanation of how to read an inherent ambiguity in the ICC standard, and that this New Interpretation accords with the interpretation that the vast majority of leading experts in this symposium would support as a matter of both doctrine and theory, it would be unfortunate to maintain an old interpretation that is effectively disproved merely because of some artificially formal divide between the ICC Statute as a treaty and the MPC as a national code. This is all the more true when other factors also militate so powerfully in favor of the New Interpretation.

  1. Negotiators of the ICC Statute intended the New Interpretation, not a volitional commitment to the consummated crime

In the proceeding section, I argued that the MPC is an important source of interpretation for the ICC Statute’s complicity standard, but if the MPC is the ICC’s obvious progenitor on this topic, it remains to be seen how those responsible for negotiating the Rome Statute saw these matters. Here, we are confronted with a curious fact—they never mention the MPC. Nonetheless, they do interpret the “purpose” standard in ways that are perfectly consistent with the New Interpretation derived from the MPC, and their views cannot be reconciled with the Old Interpretation in any way, shape or form. I start by setting out two of the most cited comments from prominent experts who negotiated the provision in the ICC Statute, then show how they more or less directly endorse the New Interpretation.

In my opening post, I cite an abbreviated passage written by Donald Piragoff, Canada’s representative during the negotiations of the ICC Statute, who played a leading role in the negotiation of the aiding and abetting provision at Rome. I include the full citation below because it unequivocally confirms the New Interpretation:

“A question arises as to whether the conjunctive formulation [intent and knowledge] changes existing international jurisprudence that an accomplice (such as an aider or abettor) need not share the same mens rea of the principal, and that a knowing participation in the commission of an offence or awareness of the act of participation coupled with a conscious decision to participate is sufficient mental culpability for an accomplice. It is submitted that the conjunctive formulation has not altered this jurisprudence, but merely reflects the fact 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 . . . . Article 30 para. 2(b) makes it clear that “intent” may be satisfied by an awareness that a consequence will occur in the ordinary course of events. This same type of awareness can also satisfy the mental element of “knowledge,” as defined in article 30, para. 3. Therefore, if both “intent” and “knowledge” are required on the part of an accomplice, these mental elements can be satisfied by such awareness.” (See page 355 of this article).

Pause momentarily to notice the structure of this explanation before we move to analyze its content. Piragoff speaks of two mental elements: a knowledge component that goes to the principal’s commission of the crime, and an intentional disposition towards the accomplice’s participation. In the passage just quoted, he explicitly refers to this as a “conjunctive formulation.” That there are two elements immediately discredits the Old Interpretation, which viewed “purpose” as the singular standard that required the accomplice to harbor a volitional commitment to the completed offense. That there are two mental elements immediately contradicts that reading, regardless of their content.

In terms of content, Piragoff’s expression is readily reconcilable with the New Interpretation. His first element—knowledge of the crime being committed by the principal—squares with the lower standard of intention in Article 30 of the ICC Statute, which includes awareness that a consequence will occur in the ordinary course of events. He acknowledges this explicitly. If we take his second element, which refers to “intention,” to envision the strongest sub-component of that amorphous term, then he is explaining that “purpose” goes to what he calls “conduct by the accused that constitutes the participation.” Admittedly, he does not reference “purpose” at all in this explanation, but there is no other non-bizarre way of mapping his account onto the language that actually exists in the Statute he negotiated.

This reading of his explanation is in perfect accord with the content of the New Interpretation, which to repeat, views “purpose” as attaching to the act of facilitation and awareness that a consequence will occur in the ordinary course of events as the lowest relevant mental element for most international crimes in the ICC Statute. (Again, for the sake of completeness, recall that some international crimes require more than intention while others require less. I suggest that the second mental element for complicity should shift in line with these definitions of crimes, so that awareness that a consequence will occur in the ordinary course of events will not be the applicable standard in all instances).

David Scheffer, the head of the U.S.’s delegation in Rome, agrees with this assessment in even clearer terms. He states that:

“the ‘purpose’ language stated the de minimus and obvious point, namely, that an aider or abettor “purposely acts in a manner that has the consequence of facilitating the commission of a crime, but one must look to Article 30(2)(b) for guidance on how to frame the intent of the aider or abettor with respect to that consequence.” (See page 355 of this article).

The explanations both these authors offer regarding the text coincide with its origins in the MPC, the new orthodoxy among participants in this symposium, and theoretical questions about complicity I turn to below. Moreover, there is nothing whatsoever in this history that supports the Old Interpretation, namely, that “purpose” requires a volitional commitment to the consummated offense. Accordingly, it is hard to resist the view that the negotiating history to the ICC’s provision governing complicity is another nail in the coffin of the old mistaken interpretation so many of us unwittingly assumed for so long. The negotiating history is especially potent given the literal ambiguities I point to.

  1. The majority of the few national legal systems that employ “purpose” as a complicity standard confirm the validity of New Interpretation of the ICC Statute

In their post contextualizing the “purpose” standard in the ICC Statute, Sarah Finnin & Nema Milaninia do a great job pointing out how “purpose” is only applied as a standard of complicity in a great paucity of criminal law systems. All other international courts and tribunals apply a knowledge standard (that boils down to recklessness in practice), which is largely drawn from an equivalent standard in Anglo-American systems. Generally speaking, systems inspired by continental models apply dolus eventualis (vaguely akin to recklessness) as the lowest standard for accomplice liability, and the unitary theory countries like Norway, Denmark, Italy, Austria, and Brazil pair the accomplice’s mental element to that required for perpetration. Moreover, even if “purpose” is a great outlier in comparative terms, the majority of the few examples of it in national legal systems are striking in that they confirm the New Interpretation.

After accepting that the old interpretation of “purpose” in the ICC Statute is indefensible and therefore undesirable, Elies van Sliedregt & Alex Popova argue that “nor can Article 25(3)(c)’s reference to “purpose” be interpreted away, into non existence.” I agree with this argument, and hope that the foregoing shows how the New Interpretation does not bring about an affront on literal interpretation; it continues to assign “purpose” an important role but limits this role to the act of facilitation, leaving Article 30 to govern consequences. Put differently, the New Interpretation respects the terminology set out in Article 25(3)(c), it just attaches it to the conduct of the accomplice not the criminal enterprise en gross. This much is repetition. What is distinct about the limited national experience with “purpose” as a standard of complicity, however, is the fact that major national systems do exactly what van Sliedregt & Popova say is impossible—in the majority of national systems where the legislature has adopted a “purpose” standard of complicity, courts do interpret it into non-existence.

In my opening post, I set out a series of examples from various national systems that adopt “purpose” standards. I will not repeat them all again here, but in summary, the US Supreme Court recently adopted a knowledge standard explicitly in a case called Rosemond v. United States, even though their earlier caselaw required the accomplice to have “a stake in” the resulting offense. Justice Alito observed in dissent, having reviewed the history of the knowledge and purpose debates up until then in the U.S., that the majority opinion confounds these two standards. Nonetheless, it is tremendously significant that the resulting standard for complicity is knowledge, and that the US Supreme Court is clear that “[t]he law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding.” This is the country that is said to be at the origins of the “purpose” standard for accomplice liability.

As the citations in my earlier post show, both Canada and New Zealand follow a similar logic. Both contain “purpose” standards in legislation, but their Supreme Courts interpret them as requiring either knowledge or intention vis-à-vis the completed offense. If reducing “purpose” to intention seems strange, see John Finnis’s (one of English law’s most important figures) explanation of how most English jurisdictions extent intention downwards, whereas “Canadians select purpose as the term to be artificially extended.” (see this article, fn 74). By this, he means that English systems include standards lower than a volitional commitment as intention, which he views as terminologically inaccurate. This, of course, reflects the debate about whether dolus eventualis can be accurately described as an element of intention in civil law systems, or whether it requires its own autonomous existence as a basis for blame attribution. Following Finnis’ logic, the jurisdictions that view “purpose” as containing more than pure volition towards a completed crime are just mimicking a similar approach in all other jurisdictions, including the ICC. Importantly, however, purpose means knowledge in these countries and cannot, therefore, be used to bolster the Old Interpretation.

On the other hand, Isreali criminal law clearly adopts the New Interpretation. As I point out in my earlier post, Israel is 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 [1999]. In commenting on the decision, Kugler explains that “[t]he requirement of the code that the actor act with the “purpose” of facilitating the crime relates only to the contribution of the aider; that is, it is required that he or she want his or her act to facilitate the commission of the offense… Thus, in the case where the aider was almost certain that his or her act would facilitate the commission of an offense, the aider may be convicted in spite of the fact that he or she did not desire to facilitate the commission of the offense.”

These nationals examples displace the old assumptions about “purpose” as a mental element for complicity, which turn out to be unsupported by so many different sources of authority, including national law.

  1. The New Interpretation of complicity in the ICC Statute minimizes the discrepancy with the standard in customary international law

Finnin and Milaninia assert that “there is scope for the [ICC] to interpret the ‘purpose’ requirement broadly, and in a manner that minimizes the divergence from customary international law.” This opinion coincides with that of David Scheffer, who writes that:

“The wording of article 25(3)(c) was uniquely crafted for the ICC, and when read in conjunction with the mens rea standards set forth in article 30 of the Rome statute, it leaves the judges of the ICC the task of determining precisely the proper criteria for accessorial liability. Nothing discourages or prevents them from looking to the growing jurisprudence of the international criminal tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, to state practice, and the scholarly texts for guidance on this issue.” (See page 352 of this article).

There are a range of good reasons for taking this advice seriously. In a separate piece I wrote for Elies van Sliedregt and Sergey Vasiliev’s new edited volume, Pluralism in International Criminal Law
(OUP, 2014), I pointed to a range of problems that arise from disparate understandings of forms of attribution for international crimes, amongst international and domestic jurisdictions alike. I will not rehearse those arguments here, except to say that the difficulties with the fragmentation of international law are real, particularly relevant for complicity, and without obvious solution apart from asking judges to attempt harmonization wherever possible. I suggest that the New Interpretation offers them an opportunity to do just this.

The Old Interpretation of “purpose” in the ICC Statute creates an important cleavage between complicity in the ICC Statute and customary international law. The idea that “purpose” somehow denotes a volitional commitment to the outcome, a desire to bring about the completed offense, clashes with “knowledge” as applied by other international courts and tribunals who purport to draw on custom. The choice between these two standards has led to protracted litigation in the context of the Alien Tort Statute, appellate litigation in national criminal tribunals, and confounds the business and human rights discourse. Moreover, as I have attempted to show once or twice (see here, pp. 38-39 and here, pp. 30-31), the customary standard reduces to recklessness in practice, which is problematic when recklessness will not suffice for perpetration of the crime the accomplice will be held responsible for.

The New Interpretation of aiding and abetting brings the mental element for complicity much closer to this customary standard, and does so while simultaneously preventing against excesses the customary standard may occasion. I say more about the theoretical credentials of both the old and New Interpretations further below. For now, I simply want to add the need for greater harmony in this area of law to the catalog of arguments for the New Interpretation listed elsewhere in this post.

10. The Old Interpretation is not theoretically defensible

One could easily write a book many times longer than this post on the theory of accomplice liability (and many, including those who contributed to this symposium, have). I don’t want to delve into this theory too deeply here, in part because I have written about the topic at far greater length elsewhere. In previous work, I have set out a relatively neutral survey of the various theoretical options for constructing accomplice liability (see here), and offered a more opinionated set of arguments for adopting a unitary theory of perpetration as the best option for international crimes (see here). Most recently, I canvased the literature for and against a “purpose” standard for accomplice liability (see here, Section II.C Towards a Moral Theory of Accomplice Liability).

In each of these earlier pieces of work, I made various normative criticisms of the Old Interpretation of the “purpose” standard (i.e. one that requires the accomplice to positively want the completed offense). They range from a strong sense of “purpose” driving a stake between desert and responsibility, to a “purpose” standard failing to match popular notions of blame and guilt, thereby undermining the social function of international trials (see here, pp. 44-47). Instead of rehashing these various arguments here again, I want to pick up on Falvio Noto’s observation about how this Old Interpretation came into being internationally, then address the three strands of argumentation he rightly claims maintained the Old Interpretation as a received wisdom about complicity in the ICC Statute. Before proceeding, however, I do think it is important to note that no expert in this symposium defended the Old Interpretation in conceptual terms.

According to Noto:

“[t]hree lines of argumentation can be discerned: Some authors claim that the purposive motivation requirement balances the low objective threshold. That reasoning is difficult to uphold given that the Lubanga Trial Chamber interpreted Article 25(3)(c) as requiring substantial effect (even though it did so in an obiter dictum). Other commentators appear to view Article 25(3)(c) in the light of domestic doctrines restricting the scope of aiding and abetting by means of an elevated mens rea requirement. Lastly, a variety of scholars derive a dolus directus in the 1st degree threshold from their reading of Article 2.06 MPC, on which Article 25(3)(c), they claim, was based on.”

We have already addressed the second and third arguments, I hope convincingly. The majority of the very few national systems that use “purpose” as a standard for complicity do not support the Old Interpretation as we all suspected—they either dilute the term so that in means knowledge or adopt the New Interpretation that attaches “purpose” to the facilitation rather than the completed offense as a whole. Moreover, one can only think that the MPC supports the Old Interpretation by leaving out a key provision within that instrument—as we’ve seen, once this missing provision is reinserted into the interpretative frame, the MPC unmistakably favors the New Interpretation (see section 5, above). Finally, those who actually negotiated the ICC standard report that States intended the New Interpretation, trumping all arguments from national law anyway. The second and third arguments fall away, leaving just the first.

It is really Noto first argument that has served as the Old Interpretation’s theoretical anchor—we need to drive the mental element of “purpose” to the highest possible ground, goes the argument, in order to compensate for the weak physical contribution an accomplice makes relative to the perpetrator. On its face, this idea of compensation is appealing, and it looms large in the very few conceptual accounts of accomplice liability that are prepared to defend a strong notion of “purpose” as the appropriate mental state for accessorial liability. As I say, it appeared once or twice in the symposium too, although no one appeared to use it to defend the Old Interpretation explicitly.

In a very significant moment for the field, Thomas Weigend’s post dispatched this argument very convincingly. His dismantling of the compensation argument for “purpose” as a standard for aiding and abetting is one of the most exciting (and important) aspects of this symposium. To reiterate, the compensation argument, which features throughout the literature and once or twice in this series, suggests that elevating the mental element for aiding and abetting beyond intention to “purpose” (note the ambiguities of intention) is perfectly justifiable given that the accomplice makes a weaker or less direct causal contribution to the crime. The frailties of the physical contribution, goes the argument, are cured by amplifying the requisite mental requirement.

In a passage of critical importance Weigend masterfully dissects this position. In one portion of his samurai-like dispatch of the thesis, he argues that:

this calculus, to me, makes little sense.  If the assistant’s objective contribution is of lesser importance, then her sentence should reflect that fact. But the question whether the assistant desires the perpetration of the crime should have no influence on her punishment, because her “volition” does not increase the harm she causes or supports.”

Later, Robert Roth agreed, calling the compensation theory a “paralogism”, which to my mind, captures the thesis perfectly. Thus, all three rationale for a strong “purpose” standard are without merit. Again, none of these expert commentators defended it.

11. The New Interpretation is theoretically defensible

 A few years ago, I wrote a paper called The End of Modes of Liability for International Crimes (see here). If the somewhat unnecessarily provocative title suggests a nihilistic approach to blame attribution, it obscured the fact that the project was a very intellectually honest attempt at arriving at a concept of complicity I felt able to defend. As I entered into the project, I quickly found that the hallmarks of the “modes of liability” literature in ICL indicated that “modes of liability” should not extend beyond the contours of the crimes they couple with (for fear of violating principles of culpability and fair labeling). On this basis, I argued that the mental element for complicity should be exactly the same as it is for perpetration. In effect, this meant that the mental element for complicity had to be dynamic (because different crimes require different mental elements), not static like knowledge and “purpose” (which seemed to apply to the accomplice regardless of the mental element in the crime she was charged with).

In actual fact, I was wrong that the “purpose” standard for complicity in the ICC Statute is static; that position assumed the Old Interpretation, which has turned out to be false. The New Interpretation corrects for this problem. Notice how the missing provision in the MPC is dynamic in structure, inviting courts to determine, with respect to results of one’s assistance, whether the accomplice has the necessary mental element required for conviction of the crime she is charged with. This structure is mirrored in the ICC Statute to the extent that Article 30 functions in a dynamic manner, too. Because Article 30 of the Statute commences with the words “unless otherwise provided,” the definitions of intention and knowledge within it apply in instances where the Statute is silent (as is the case for complicity, on issues of result). If the Statute requires a stronger mental element (for genocide, which requires a special intent) or a weaker standard (for the war crime of using, conscripting or enlisting children, for which negligence suffices), the mental element required for complicity shifts, too.

In my opinion, this is entirely theoretically defensible—indeed, it is preferable to all other standards on offer in customary international law or national law. If “purpose” goes to assistance, then someone is not liable for negligently leaving their gun unlocked when someone else removes it for a crime spree, but they are responsible for an international crime that requires intent (say deportation as a crime against humanity) if they purposefully supply the weapon to the perpetrator, in the awareness that it will be used to forcibly displace civilians as part of a widespread and systematic attack in the ordinary course of events. The New Interpretation is sensitive to the crimes complicity couples with whereas both the knowledge standard and the Old Interpretation of “purpose” randomly skew the meaning of responsibility by making liability turn on chance couplings between mental element and the crime charged.

I resist the temptation to defend this theory again here. I am conscious that many excellent scholars disagree with me about the unitary theory of perpetration as a model for all forms of liability for international crimes (for an interesting critique, see Gerhard Werle and Boris Burghart’s article in this edited volume and Cassandra Steer’s great book Translating Guilt: Identifying Leadership Liability for Mass Atrocity (T.M.C Asser Press, 2015)). I confess that I am not entirely convinced by their thoughtful responses, but the interesting aspect for present purposes, is that the New Interpretation creates dynamism within the mental element for complicity without leading to the collapse of the differentiated system a number of theorists hold dear. Once cabined in this way, I suspect that the dynamism of the mental element I call for will seem considerably more palatable conceptually. Certainly, I hope I raised a number of arguments for it, and have seen none against. Perhaps this dialogue will begin that new debate. Whatever the case, I believe that there are strong conceptual arguments against the Old and for the New Interpretation.

12. Points of residual disagreement, areas for further research

There are numerous points of residual disagreement, which will hopefully stimulate a new wave of critical scholarship. First, what is the equivalent of the English “purpose” in all the other official language versions of the ICC Statute? Second, is this double intent standard normatively defensible? For myself, I wonder whether the first step (requiring “purpose” for the facilitation) is conceptually redundant—why not just consider whether the person who left their weapon out negligently had the mental element(s) necessary for being found guilt of the offense? In other words, I acknowledge that without amendment, the ICC Statute commits us to a two-step analysis, I just wonder whether this makes sense theoretically. Third, how specific do the two mental elements for accomplice liability have to be? There is interesting caselaw on these questions in England, France and Germany, which remains to be debated within international criminal justice. Fourth, what of attempted complicity in the ICC Statute? How does this change matters relative to customary international law? Fifth, is “shared intent” really the appropriate phrase to describe issues of complicity, given that there is no necessary solidarity between perpetrator and accomplice—there need be no agreement between them vis-à-vis the completed crime. These, and a host of other questions, are of utmost importance, not just for our understanding of international criminal justice in an interconnected world, but also for the scholarly disciplines that draw so heavily on it. In the end, I believe that this symposium broke new ground in displacing an old and ushering in a new interpretation of “purpose” in the ICC Statute. My kind thanks to all those experts who lent their knowledge, time and insight to the discussion.

 

 

 

 

Symposium: Greenawalt’s International Criminal Law for Retributivists

I’m thrilled to host Sasha Greenawalt’s excellent new article International Criminal Law for Retributivists as the inaugural point of discussion for this blog.

In the early years of international criminal justice, Mark Drumbl and Rob Sloane argued, very eloquently, that retribution was not a viable basis for punishment in international criminal law.

Sasha takes issue with their approach, drawing heavily on a rich literature in the theory of criminal law. His article is brilliantly written, profound in scope, and has important real world implications.

At the same time, it will certainly not convince everyone. For that reason, I have cajoled Mark Drumbl, Adil Haque, Rob Sloane and Meg deGuzman to write blogs criticizing Greenawalt’s great piece. Of course, I’ll also invite Greenawalt to reply.

In terms of timing, I’ll post Drumbl and Haque’s responses in the coming days, then ask Greenawalt to respond to them later this week.

Rob Sloane and Meg deGuzman have agreed to reopen the debate in late December this year, so the discussion will take place in two split tranches. We’ll then give Greenawalt the final word.

So, welcome to all my friends and colleagues! It’s a real privilege to have you launching what I hope will become a central platform for these sorts of scholarly debates.