Robert Roth is a Professor of Criminal Law at the University of Geneva and Director of the Geneva Academy of International Humanitarian Law and Human Rights (one of my alma mata, and a tremendous influence on my thinking). He was the Presiding Judge of the Special Court for Lebanon between 2011 and 2013.

Je remercie James Stewart de sa sollicitation et de son autorisation/permission d’intervenir en français. Il se justifie d’autant plus d’intervenir dans une langue « continentale » que l’approche est essentiellement différente et que les concepts, même les plus importants, se traduisent malaisément. James m’a demandé de m’exprimer à partir du droit suisse et de l’usage que ce droit, passerelle entre les mondes francophones et germanophones, fait de l’expression « en vue de » de l’article 25 al. 3 lit. c) du Statut de Rome.

Je ne vais pas répéter ce qui a été bien exposé par mes prédécesseurs, en particulier quant à la distinction essentielle entre motifs (ou mobiles) et intention in actu ou quant au fait que l’imputation d’une intention se fait sous forme de dol direct quand un événement (la mort de tous les passagers de l’avion) est la conséquence inéluctable d’un acte délibéré (tuer l’un des passagers en faisant exploser l’avion).

En bonne doctrine suisse – et allemande dont la première subit l’influence déterminante -, la présence de l’élément subjectif « en vue de » permet de catégoriser l’infraction en tant que délit de dessein (Absichtdelikt). Cela signifie que, pour que l’infraction soit consommée, il suffit que l’auteur ait commis les actes énumérés dans la norme (tuer, soustraire, dénoncer faussement) en ayant le dessein d’obtenir un résultat (l’enrichissement illégitime dans le cadre du vol, provoquer l’ouverture d’une poursuite pénale dans le cas de la dénonciation calomnieuse). En revanche, il n’est pas nécessaire que l’événement désiré se réalise pour que l’infraction soit consommée : celui qui soustrait un objet sans parvenir à s’enrichir est bien un voleur.

Sur quoi doit porter ici le dessein prévu par l’article 25 al. 3 lit. c)? Il vise la facilitation de la commission d’un crime (facilitating [the crime]), et donc pas directement le crime. S’agissant du crime lui-même, les dispositions ordinaires de l’article  30 du Statut suffisent (cf. l’interprétation systématique des rapports entre 25 et 30 proposée de van Sliedregt/Popova dans leur contribution à la présente discussion). Dès lors, celui qui apporte son aide sans véritablement faciliter la commission du crime (par exemple il y a suffisamment d’armes, et l’arme fournie par le « complice »  vient en surplus) serait-il punissable pour complicité consommée et non pour tentative de complicité, impunissable selon le Statut ? La question sera résolue au stade de la causalité objective : si les moyens fournis ne facilitent en aucune manière la commission du crime, le participant en sera resté au stade de la pure intention, fût-elle sous la forme qualifiée du dessein ; il est donc impunissable.

A quoi sert alors la qualification en tant que forme de participation à dessein ? Le dessein est une forme d’intention qualifiée. Le « complice » n’accepte pas simplement que son acte facilite la commission du crime ; il le veut au sens fort du terme. Le dessein se situe à l’opposé du dol éventuel, forme d’intention dans laquelle l’auteur s’accommode de la commission d’une infraction (il l’envisage et l’accepte), sans toutefois que son comportement tende à cette fin. La doctrine suisse et allemande s’est toujours interrogée sur la question de savoir si la forme du dessein éventuel était logiquement admissible. A mon sens, elle ne l’est pas, car il y contradiction entre les deux éléments (le dessein et son caractère éventuel). L’événement lui-même peut parfaitement avoir un caractère non inéluctable (exemple de l’ouverture d’une poursuite en cas de dénonciation calomnieuse) ; en revanche, l’auteur ne peut pas en même temps vouloir et ne pas vraiment vouloir.

Cela signifie que celui qui s’accommode simplement du fait que son assistance puisse faciliter la commission d’une infraction ne réalise pas à mon sens l’élément subjectif de 25 al. 3 lit. c). Ce point est important car il permet d’éliminer ce que la doctrine allemande appelle une simple Handlung mit Hilfetendenz (action tendant à prêter assistance) ; cf. Welz, Zum Verhältnis von Anstiftung und Beihilfe, Frankfurt am  M.  2010, p.45.

J’aimerais encore intervenir sur un point soulevé à diverses reprises dans ce débat. Sur le plan conceptuel, j’ai énormément de peine à accepter la théorie de la « compensation » : il serait nécessaire de compenser la plus faible implication (objective, actus reus) du « complice » par une exigence plus élevée en matière subjective (mens rea).  (On trouve un développement de cette thèse dans la contribution de Cassandra Steer). Cela me paraît un paralogisme : la thèse est d’abord discutable sur le plan de la légalité, puisque l’on donne à une norme d’imputation pénale une interprétation difficilement compatible avec son texte. Mais, surtout, les éléments objectifs et les éléments subjectifs ne relèvent pas de la même catégorie conceptuelle et on ne peut pas remédier à la relative légèreté des uns en invoquant la solidité des autres ; ce mélange des genres n’apporte guère de cohérence à un édifice déjà fragile. Le raisonnement me fait penser au raccourci, emprunté par certains législateurs, tendant à contourner les difficultés en matière de preuve par un assouplissement des éléments matériels de l’infraction ; là aussi, on mélange deux registres différents.

La démarche « compensatoire » est essentiellement justifiée par le fait que la commission du crime (article 25 al.1 lit. a)) et la « simple » participation (entre autres aiding and abetting) sont traitées de manière équivalente dans le Statut, en particulier au stade de la fixation de la peine. La justification ne me paraît pas convaincante : d’une part, le choix de ne pas distinguer dans le « texte législatif » (le Statut) n’interdit pas d’opérer une gradation au stade de la fixation effective de la peine ; d’autre part, dans les systèmes qui différentient entre action et  participation à titre principal d’une part et participation à titre accessoire d’autre part, cette  différentiation se fait généralement sur la base de critères purement objectifs (cf. Roth, « Responsabilité pénale individuelle pour délits collectifs : droit continental » in de Frouville ed., Punir les crimes de masse : entreprise criminelle commune ou co-action ? Bruxelles, 2012, pp. 55-71).

Reste posée la question délicate de la divergence entre l’infraction auquel le « complice » avait le dessein de prêter assistance et le crime réellement commis. A mon sens, le texte français, plus encore que le texte anglais, de l’article 25 al. 3 lit. c), impose une interprétation restrictive : au cas où le crime effectivement commis est différent du crime auquel le « complice » avait le dessein de contribuer, ce dernier ne pourra être condamné sur la base de l’article 25 al. 3 lit. c) (sur les diverses approches « continentales » en la matière, voir Roth, ibidem, avec en particulier l’approche beaucoup plus large du droit italien (article 116-117 CPI), selon lequel en substance si le délit commis est différent de celui qui avait été voulu par l’un des participants, celui-ci répond néanmoins du délit effectivement commis si ce dernier est la conséquence de son action ou de son omission, la doctrine commandant toutefois une interprétation restrictive selon laquelle la contribution au délit de celui qui est dépassé par la suite des événements est en elle-même fautive, en ce sens qu’un « homme raisonnable » aurait prévu la réalisation du délit, cf. G. Marinucci/E. Dolcini, Diritto penale, 2ème éd, Milano 2006, pp. 363).

Elies van Sliedregt is Professor of Criminal Law at VU University Amsterdam is the author of Individual Criminal Responsibility in International Law (OUP, 2012).

Alexandra Popova is a doctorate candidate at VU University Amsterdam, writing on aiding and abetting in international criminal justice  as part of the project ‘Dealing with Divergence: National Adjudication of International Crimes’.

The starting point in this discussion was whether the reference to “purpose” in Article 25(3)(c) requires a volitional commitment to the criminal outcome (to the consummated offence). This translated to the question: does the aider/abettor need to share the principal’s intent, or might something else suffice? We agree 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, for the reasons that follow.

First, requiring a higher mens rea of accomplices than of principal perpetrators is not necessitated by the framework of Article 25(3) of the ICC Statute. By way of analogy: in U.S. law, there has been a long-standing split between a purpose-based approach (where the aider/abettor must share the intent of the principal to be liable) and a knowledge-based approach (where knowledge of the principal’s intent suffices). These differing mens rea standards can be traced back to the distinction between accessories before the fact and secondary principals, who were present at the scene and aiding in the commission of the offence. As all would be punished for the crime proper, a higher mens rea was required for accessories to balance their comparatively lesser physical involvement in the crime. As pointed out by Flavio Noto, requiring a higher mens rea standard (dolus directus in the 1st degree, or shared intent) for aiders and abettors might still be justified in jurisdictions where accessories receive no discount in punishment; similarly it makes sense where juries are barred from lowering sentence for minor involvement in a crime. In these sorts of circumstances, “balancing” an aider/abettor’s comparatively lesser physical involvement with a higher mens rea threshold ensures that only those possessing a sufficient degree of culpability face punishment for the crime. This line of reasoning does not apply at the ICC, where the convicted person’s degree of participation in the crime is taken into consideration, along with other factors, at the sentencing stage (see Article 78, ICC Statute; Rule 145(1)(c), RPE).

In the absence of necessity for a higher, balancing mens rea for aiders and abettors, the issue is subject to be resolved with reference to policy. This leads to a second point: as matter of policy, requiring that an accomplice possess a volitional commitment to the criminal outcome does not fit the nature of the crimes and would be contrary to the object and purpose of the ICC Statute. It is now commonplace to point out that international crimes are collective and systemic. We agree with Thomas Weigend in the post preceding this one that the commission of international crimes requires the coordination, cooperation and contributions of many actors, who may have vastly differing motives and goals. This broad division of tasks/contributions within, among and from the peripheries of organizations and hierarchies, means that many more participate than do so ardently; personal objectives are easily divorced from passions in organized murder. It would be contrary to the object and purpose of the ICC Statute to exempt from responsibility those who provide assistance knowing to a virtual certainty that they aid the commission of a crime, merely because they do not desire its commission but assist with some other objective in mind. Deterring international crimes or – to adopt the preferred phrase – fighting impunity, requires that all those who willingly participate are held responsible. Indeed, a parallel development in domestic law has seen a focus on the seriousness of the underlying crime coupled with policy concerns of crime prevention. It lead municipal courts and legislators to adopt knowledge-based approaches [See Westerfield, The Mens Rea Requirement of Accomplice Liability, at 183 referring to People v. Lauria, 251 Cal. App. 2d 471, 59 Cal. Rptr. 628 (1967) and 177; An illustration is People v. Germany 42 Cal. App. 3d 414, 116 Cal. Rptr. 841 (1974).]

On the other end of the scale, nor can Article 25(3)(c)’s reference to “purpose” be interpreted away, into non-existence. Primarily, this is because it is self-evident that its inclusion in Article 25(3)(c) has the effect of displacing the application of Article 30 (applicable “unless otherwise provided”) and that a standard higher than “knowledge” must be required; in other words, it would make little sense, and would have the effect of making that phrase of the Statute redundant, to displace Article 30 knowledge in favour of an identical Article 25(3)(c) knowledge. More generally, Article 31 of the Vienna Convention on the Law of Treaties requires that the words be given their “ordinary meaning” in light of the treaty’s object and purpose. This could lead one to argue that it is not open to the court to read down “purpose”.

So how to interpret “purpose” when looking at its wording? How to relate to section 2.06(3) of the Model Penal Code (MPC), from which Article 25(3)(c) – partly – takes its wording? The fact that Article 25(3)(c) reflects the MPC provision on “purpose” does not imply that it was the intention of the drafters of the Rome Statute to bring in the body of case law that interprets this provision, however, instructive this case law may be. Only part of the MPC provision was adopted. Moreover, as “insiders” have noted, it was the intention of drafters to accommodate different legal traditions. According to Scheffer, Article 25(3)(c) “was negotiated not to codify customary international law but to accommodate the numerous views of common law and civil law experts about how to describe the actions of an aider and abettor.” (p. 351, “The Five Levels of CSR Compliance”) Drawing on MPC-wording and inserting “purpose” seems to have been nothing more and nothing less than a copy-paste job, to use Cassandra Steer’s words.

In a similar vein, it does not seem appropriate to interpret Article 25(3)(c) in conformity with customary international law or general principles of law. Even assuming that this is possible – especially in the realm of modes of liability there is disparity in the law – several further problems arise, related to the strength of the ad hoc case law’s claim to actually reflect customary international law. It is difficult to maintain that customary international law of aiding and abetting is entirely settled, considering the very recent upheaval in relation to ‘specific direction’ – a debate which, incidentally, parallels many of the same concerns about appropriately establishing the culpability of temporally and geographically remote actors providing neutral (not “purposed”) assistance, as those that might be addressed by a standard of “purpose”. Seeking an interpretation of Article 25(3)(c) that is in keeping with a “knowledge” standard might be akin to trying to anchor to floating debris.

What then, might “purpose” mean? Does it necessarily entail shared intent, or might a looser interpretation be available? Purpose presupposes knowledge of the principal’s intent coupled with voluntariness, or will, to be party thereto. We agree with Thomas Weigend that the actor’s will flows from his conduct: it is artificial to distinguish a person who knows that a certain consequence will follow his act and does it anyway, from one who intends the consequence. Knowledge thus equals intention. The level of knowledge seems key when interpreting “purpose”. An awareness ‘of a likelihood’ would be insufficient for “the purpose of facilitating the commission of such a crime”. As noted by Flavio Noto, citing Markus Dubber, proof of positive knowledge would fulfil the mens rea of Article 25(3)(c): the aider and abettor’s commitment to the criminal outcome can be derived from his certain knowledge about the facilitating effect his assistance has on the crime.

An aider’s knowledge – and his will to facilitate the act of the main perpetrator – can also be inferred from his provision of assistance that is tailored to the crimes (as opposed to neutral assistance): this refers to the example of providing weapons that can only be used to kill civilians. Indeed, this final example illustrates the parallels between specific direction and purposefulness, as well as the inevitable interplay between mens rea and actus reus, also considered by Weigend.

Finally, for the sake of completeness, it must briefly be noted that we do not share the concern that a mens rea of purposefulness would preclude the responsibility of those acting for cold-blooded profit maximisation, or indeed any other strategic or passionless motive. This is because, as Weigend notes, purpose or object is distinct from motive and goes not to the crime per se but to the facilitation. Consequently, it also seems unnecessary to distinguish between ‘primary’ and ‘secondary’ purposes, and argue that secondary purposes are sufficient as discussed by Flavio Noto, as well as Sarah Finnin and Nema Milennia.

Adil Ahmad Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers School of Law, Newark

I’ve been enjoying the discussion of complicity on this blog, but as a scholar of both American and International Criminal Law, I confess that I’m slightly confused by the discussion of the U.S. Model Penal Code (MPC)’s significance for aiding and abetting in the ICC Statute. I’m grateful to James Stewart for offering me the chance to comment on these three authors’ arguments in this respect.

I see two plausible approaches. The first is that the drafters of the Rome Statute considered the MPC, both 2.06(3) and 2.06(4), and deliberately decided to depart from it and require purpose with respect to all components of “a crime” (conduct, result, circumstance). If the drafters wanted to incorporate the 2.06(3)-2.06(4) framework then they would have done so. Since they did not, we should presume that they had their reasons and intended something different.

The second is that the drafters intended to track the MPC. According to 2.06(3), an accomplice to a conduct crime aids with the purpose of facilitating the perpetrator’s conduct. According to 2.06(4), an accomplice to a result crime is, first, “an accomplice in the conduct causing [the prohibited] result” who, second, “acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” At 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).

This is pretty clear from the MPC Commentary: “[2.06(4)]deals with a special case that arises when an actor is an accomplice in conduct within the meaning of [§ 2.06(3)], and when a criminal result—anticipated or unanticipated—flows from that conduct.” “The most common situation in which Subsection (4) will become relevant is where unanticipated results occur from conduct for which the actor is responsible under Subsection (3). His liability for unanticipated occurrences rests upon two factors: his complicity in the conduct that caused the result, and his culpability towards the result to the degree required by the law, that makes the result criminal.”

A good illustration is Riley v. State, Court of Appeals of Alaska, 2002. 60 P.3d 204: P fires into a crowd, recklessly injuring two people. A assisted P with the purpose that P engage in certain conduct (firing into the crowd), and was reckless with respect to whether P’s conduct would cause injury. P and A are both guilty of first-degree assault (recklessly causing serious physical injury by means of a dangerous instrument). Interestingly, this case reads 2.06(4) into a statute that, like the Rome Statute, on its face tracks only 2.06(3).

On either view, an accomplice must act with the purpose of facilitating the perpetrator’s conduct. Neither view supports complicity on the basis of knowingly or recklessly facilitating the perpetrator’s conduct. Whether or not the Rome Statute departs from the MPC with respect to results, it certainly follows the MPC with respect to conduct.

Why require that an accomplice aid with the purpose of facilitating the perpetrator’s conduct? I think about it in this way: to perpetrate a crime, one must not only posses the mental states explicitly required by the offense definition but also perform a voluntary act, which in turn requires an intent to perform the bodily movements that constitute the prohibited conduct or cause the prohibited results. It follows that, to be complicit in a crime, one must not only posses the mental states required by the offense definition but also posses the intention that the perpetrator perform the relevant voluntary act. Any lesser standard would create a gap between the perpetrator’s responsibility for his/her own conduct and the accomplice’s responsibility for the perpetrator’s conduct.

Dr Cassandra Steer – Cassandra is the author of a forthcoming book Translating Guilt: Identifying Leadership Liability for Mass Atrocity (T.M.C Asser Press, 2015). She is a Lecturer and Researcher at the Amsterdam Centre for International Law, but about to join McGill Law School.

As with so much terminology in the Rome Statute, the debates on the content and meaning of Article 25 are fueled by problems of translating domestic criminal law notions to the international context. It is tempting to copy-paste the MPC approach because the wording looks similar, however the Rome Statute is a patchwork of legal traditions, and no single domestic interpretation will provide the clarity that is sought. Concepts and words in one system do not necessarily have the same connotations as they do in others. The concern that the Rome Statute departs from customary law is in my view not the central issue, since one could argue that the case law of the ad hoc tribunals does not itself amount to custom; all that has emerged is differing trends in different international and hybrid tribunals, each of which draw on various domestic criminal law models. Instead I argue a broader theory of liability should be applied to solve questions of interpretation; namely a theory that differentiates between principal and assistant liability.

Aiding and abetting comes from old English common law terminology, when there used to be a legal distinction between principal in the first degree (the physical perpetrator), principal in the second degree (anyone who was physically present and aiding the crime), and an accessory who was, according to the Blackstone commentaries; “not the chief actor, nor present at its performance, but is some way concerned therein, either before or after the fact”. The distinction was made because the death penalty applied to every felony for principals, but not for accessories. However over time this legal distinction was eradicated in the common law tradition. Although the terms “principal” and “accessory” remain, every actor is considered equally liable for the full commission of the crime, regardless of his or her actual contribution. This amounts to a functionally unitary system.

In the US, the MPC attempted to make a clear distinction between the fault elements ranging from intent, purpose, knowledge to recklessness, as applicable to different crimes, however it is unclear whether there should be differing requirements for different participants in a crime, given that there is no legal distinction between them. James Stewart’s argument for a dynamic system of volitional requirements would make sense in this context; whatever is required for the crime should apply to all participants.

The different interpretations of “purpose” that appear in US case law with respect to aiders and abettor agree that in any case it should not be seen as equivalent to motive. As one judge put it in a 1940 case, even the person who sells a gun to another, knowing it will be used for murder, cannot escape liability by saying the gun was sold merely for profit and not for the purpose of the crime:

“Guilt as an accessory depends, not on ‘having a stake’ in the outcome of the crime [. . . ] but on aiding and assisting the perpetrators; and those who make a profit by furnishing to criminals, whether by sale or otherwise, the means to carry on their nefarious undertakings, aid them just as truly as if they were actual partners with them” (Backun v United States (1940) 112 F2d 635 (Fourth Circuit Appeals Court) p 637.)

This somewhat loose standard was refined by Judge Learned Hand in Peoni: the accused must “in some way associate himself with the venture, that he participates in it as something he wishes to bring about, that he seeks by his action to make it a success. All the words used [. . . ] carry an implication of purposive attitude towards it.” (United States v Peoni (1938) 100 F2d 401 (Second Circuit Court of Appeals) p 402)

The original MPC draft had included “knowingly” as a loose standard for accomplice liability, however the final draft follows Judge Learned Hand’s formulation, and requires
“purpose to facilitate the crime”. Most federal and state courts follow this standard, however as the other two excellent blogs in this discussion point out, interpretation of the standard can sometimes differ.

In Canada there is a definitional difference between an aider and an abettor; s. 21 of the Criminal Code requires for the aider that she “does or omits to do anything for the purpose of aiding any person to commit it” (emphasis added), whereas no such requirement exist for the abettor. Despite this, the same functionally unitary system of liability applies where there is no legal distinction between a principal and an assistant. As was stated in the leading Thatcher case: “[this provision] is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant. It provides that either mode of committing an offence is equally culpable, and, indeed, that whether a person personally commits, or only aids or abets, he is guilty of that offence.” (R v Thatcher S.C.J. No. 22, 1 SCR 652, p 690.)

Generally in Canadian case law there are high mens rea levels required for parties to a crime who do not actually commit the crime, such as knowledge or purpose, regardless of the mens rea requirement for the crime committed, as a way of placing some limits on the deliberate policy attempt to broaden the net of liability. The Supreme Court has stated that “the more peripheral the accused’s involvement to the completed crime, the more sense it makes to require a higher form of subjective mens rea.” (R v Roach (2010) 2 SCR 98 (Supreme Court of Canada) para 36.)

There must be a double intent; an intent to assist the physical perpetrator, as well as knowledge of at least the type of crime that is to be committed, though not necessarily the exact crime. The purpose requirement for the aider is interpreted with flexibility in the case law, since it “would be fulfilled if he had either intent or knowledge of both the crime, and of the intent of the perpetrators to commit the crime.” (R v Briscoe (2010) 1 SCR 411 (Supreme Court of Canada) para 16.) At the same time, willful blindness would also suffice in the place of actual knowledge.

Since abetting is generally understood to entail encouraging, instigating or promoting, it implies some intention to see the crime committed, and is interpreted more strictly.

It is difficult to compare the civil law tradition to these definitions, since the English language terms “aiding and abetting” can only be translated by approximation, and there are many different forms of assistant participation. While many jurisdictions that follow the civil law tradition have modes of liability that amount to instigation, soliciting or assisting, the definitions and mental fault elements differ. Suffice to say there is a double intent requirement in Argentina, Belgium, Germany, and the Netherlands, such that an actor must both intend her own participation and also intend the commission of the predicate crime (or a lesser crime. She is only liable for a further crime if it was foreseeable in the course of the crime she intended to participate in.) Whether this intent is the same as or stricter than “purpose” is uncertain for reasons of translation, but it would appear in case law trends that something similar to “knowledge” would usually suffice.

James Stewart has pointed out that in many of these jurisdictions dolus eventualis suffices whenever intent is required. Many common law lawyers are uncomfortable with this notion, but the best way to understand this is a lower limit of intent, the same as willful blindness. There must be evidence of the actor’s acceptance of the risk of a criminal outcome; this is what separates it from recklessness. Where the MPC has attempted to make clear distinctions between intent, purpose and knowledge, in most civil law jurisdictions there is only a clear distinction between intent and recklessness; the difference is that under intent there are many judicial interpretations which offer a sliding scale, the lower limit of which is dolus eventualis. Thus a term such as “purpose” may fit into this sliding scale without having a specific statutory definition. It would be something more than dolus eventualis and something less than pure intent, but as long as there is something willful (and therefore blameworthy) about the assistant’s actions, it would fit the generic test.

The point of the double intent requirement in these jurisdictions is the same as the reasoning that emerges in Canadian jurisprudence, namely that when extending liability to those who have not physically committed the crime, it is necessary to compensate the lesser physical contribution with a greater requirement of mental fault. However this has an even more important role in these systems where a normative legal differentiation exists between principals and assistants. A principal is considered to be more morally blameworthy, and therefore receives a greater punishment and the full weight of the conviction for having committed the crime. An assistant (including but not limited to aiders and abettors) has contributed less and is therefore less morally blameworthy, and receives a lesser legal qualification and usually a lesser punishment.

This distinction is embedded in the notion of moral agency; there is a difference between what I should do ‘simpliciter’, or the morality of principalship, and what I should do by way of contribution to what you do, or the morality of complicity. The latter is still wrong if you commit a crime, but it is a secondary wrong. For this reason a principal is convicted for the commission of the crime proper, whereas a secondary participant is convicted for her role in assisting the principal, but legally speaking she is not convicted for having committed the crime herself, since she did not fulfil the elements of the crime. She is not a genocidaire, but an assistant to the genocidaire, and is legally qualified as such.

In interpreting the wording of Article 25 of the Rome Statute, the terminology in paragraph (3)(b) seem to be drawn from civil law models (and then translated into English terminology, already risking translation problems!) and those in paragraph (c) are familiar to the common law model. Schabas suggests that since in practice the two paragraphs overlap very considerably, they should not be viewed as two different or distinct bases of liability, but rather as an effort to codify exhaustively.

This is why I believe the inclusion of “purpose” for the aider and abettor is justifiable; because he has contributed less, there must be some compensation for this in the form of requiring purposeful facilitation, in order to protect against guilt by association. Similarly, paragraph (3)(d) requires intentional contribution for an assistant to a group with a common purpose.

This aligns with what James Stewart states, that the “purpose” requirement goes to contribution, but the mens rea fault element to be determined still depends on the predicate crime. However I disagree with James that this necessarily amounts to a unitary theory of liability, for the reasons argued here. In fact it matches a differentiated theory particularly well. If the ICC continues its interpretation of Article 25 as differentiated, therefore requiring less physical contribution for the morally less blameworthy modes of liability, then it needs compensate this with high standards of volition with respect to the participation. This still leaves room for a dynamic theory for the mens rea with respect to the predicate crime. There must be safeguards against guilt by association for the assistant modes of liability, and the “purpose” requirement under (3)(c) as well as the “intentional” requirement under (3)(d) fulfill this need.

A comparative perspective on James’ final question “what does purpose mean” may still mean that there is some flexibility in interpreting the precise meaning of these safeguards. As long as guilt by association or recklessness are excluded, it may be possible to include knowledge, willful blindness or dolus evenutalis, especially since in civil law jurisdictions these all amount to gradations of intent. So as long as there is evidence of wilful participation, regardless of the motive, it would be possible to include business men and women who act for profit, but in full knowledge of the crimes they are facilitating.

Dr Flavio Noto is the author of the book Secondary Liability in International Criminal Law: A Study on Aiding and Abetting or Otherwise Assisting the Commission of International Crimes (DIKE, 2013)

As James Stewart correctly highlights, most scholars interpret “purpose” as the mental element for aiding and abetting in Article 25(3)(c) as requiring a volitional commitment to the criminal outcome, a mens rea standard also known as dolus directus in the 1st degree. Three 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.

To interpret Article 25(3)(c) as requiring a volitional commitment to the criminal outcome has drawn a fair share of criticism on policy grounds. Some commentators correctly point out that a dolus directus in the 1st degree threshold renders the Statute’s provision on aiding and abetting virtually futile; in the case of material support it would hardly be possible to prove that the aider and abettor acted for more than just financial profit. Also, it is argued, to privilege cold-blooded profit maximising vis-à-vis ardent facilitation is not only mistaken from a criminological point of view but also contrary to the object and purpose of the Rome Statute. These criticisms mirror the identical discussion on the suitable mens rea standard for aiding and abetting in domestic criminal law.

To give way to these policy considerations may indeed be in accordance with the object and purpose of the Rome Statute. The trouble is, though, that Article 31(1) of the Vienna Convention on the Law of Treaties commands to give precedence to the ordinary meaning of the wording. Purpose may not necessarily be tantamount to a volitional commitment to the result of the crime but it certainly appears semantically closer to that position than to a mere knowledge standard.

The somewhat simplistic lowest common denominator in legal literature is that purpose requires “more than knowledge”. While this truism is unhelpful, there is merit in suggesting that proof of certain knowledge fulfills the mens rea required by Article 25(3)(c):

Dubber claims that the aider and abettor’s commitment to the criminal outcome can be derived from his certain knowledge about the facilitating effect his assistance has on the crime. This reasoning not only follows a similar logic applied in domestic criminal law but also the logic applied in Kvočka to explain the way in which a knowing facilitator turns into a participant in a JCE sharing the intent of his or her co-perpetrator. Due to the fine line between knowledge and shared intent the trouble with this logic is to determine at which point in time the facilitator’s knowledge crosses the threshold.

Taking this observation a step further, Farrell asserts that it is unsettled whether “the purposive element requires the aider and abettor to act with the sole purpose for contributing to the commission of a crime“. Cassel and Vest therefore contend that the aider and abettor aims at facilitating the crime, except that this is not his or her primary but “secondary purpose”, that is, a “prerequisite necessarily linked” to his or her primary purpose – the latter being, for instance, financial gain.

This line of argument mimics the fiction – meticulously examined by Stuckenberg – that certain knowledge about an undesired but anticipated side-effect is tantamount to a volitional commitment to that side-effect (think of the well known textbook example of the assassin who shoots down an airliner with the aim to kill a specific person sitting in the cramped passenger rows). Applying this fiction to aiding and abetting, Vest points out that it makes limited sense “that someone who knows that a specific result is an inevitable consequence of his conduct should be treated in a different manner than someone who consciously desires this result”. In other words, the intent to contribute to a crime must be separated from the underlying motives and desires. British criminal law reflects this when purporting that an act of assistance is intended both “if it is chosen as an end in itself, or as a means to an end.” Thus, the aider and abettor who is aware or foresees that the realization of the success of the crime is a necessary or foreseeable consequence of his act of assistance acts with the purpose of facilitating the crime. After all, as a comparison of the wording of Article 25(3)(d)(i) and Article 25(3)(c) shows, the Rome Statute itself seems to make a difference between contributing “with the aim of furthering” a crime and assisting “for the purpose of facilitating” it.

One point of criticism concerning a certain knowledge-standard can be expected to be that it is not in accordance with the MPC, which is widely regarded to have served as the basis for Article 25(3)(c). Two points should be highlighted:

First, the fact that Article 25(3)(c) reflects the MPC’s provision on aiding and abetting does not imply that it was the intention of the drafters of the Rome Statute to follow the MPC’s interpretation on purposive facilitation.

Second, as James Stewart rightly points out, is questionable whether the MPC’s provision on aiding and abetting requires the facilitator to desire the criminal outcome. In some US jurisdictions the purpose requirement appears to have been interpreted in a way that the accessory must possess the full mens rea required of the perpetrator. However, Mueller, Weisberg and Weiss have adduced authorities showing that in other jurisdictions purpose is fulfilled by proof of mere knowledge, triggering the question as to the circumstances under which knowledge is not tantamount to purpose.

Third, it is questionable why the MPC’s tests should apply within the completely different framework that governs the ICC. Commentators have shown that in some MPC jurisdictions a looser view that in reality made certain knowledge sufficient has been put forth with respect to serious crimes, whereas a higher mens rea standard has primarily been reserved for less serious ones. Furthermore, to require purpose for aiding and abetting appears to have been a means to justify or excuse the aider and abettor due to mistake of fact or to redress over-inclusion. Also, scholars have pointed out that the case for a dolus directus in the 1st degree standard was strong in jurisdictions granting no punishment discount to accessories and even stronger in jurisdictions barring the jury to lower the sentence for minor involvement in a crime. The Rome Statute, unlike the MPC, addresses these issues. That makes a volitional commitment requirement for aiding and abetting redundant and inappropriate.