Category Archives: International Criminal Justice

The Sort of Justice the ICC Can and Cannot Deliver

Sarah Nouwen is a lecturer in law at the University of Cambridge, Deputy Director of the Lauterpacht Centre for International Law and fellow of Pembroke College. She is the author of Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2013)

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is not just fluently written and rich in original interview materials. It also makes an important argument: the relationship between the International Criminal Court (ICC) and the world’s most powerful states has been one of mutual accommodation. In Bosco’s terminology, major powers may not have ‘marginalised’ the Court (or, in the case of the United States: it has shifted away from doing so), but they do to some extent ‘control’ the Court. They do so as members of the Security Council, shaping the Court’s docket by referring situations to the Court without providing additional funding, thereby absorbing the Court’s capacity for the situations they consider warranting investigations; through signalling their preferences and dislikes in informal meetings with ICC officials; and by providing information and other forms of assistance in situations where they are happy with ICC involvement, and withholding it where they are not. The ICC, for its part, does not take direct instructions from the major powers, but has internalised their wishes in its decision-making processes, particularly when deciding whether to open an investigation. It has not challenged the ways in which the Security Council has attempted to shape the Court’s jurisdiction, even where resolutions tried to exclude people from the Court’s personal jurisdiction, and it has not opened investigations in situations where the major powers would object. As a result of this mutual accommodation, the major powers have not merely tolerated the Court but, in some specific instances, even actively supported it.

The argument is important even if not surprising. To anyone who has observed the actions of the ICC over the past ten years it seems evident that the Office of the Prosecutor (OTP) has opened investigations only where the major powers have given a ‘no-objection’ indication (eight African states), while it has taken no action beyond a ‘preliminary examination’ where the major powers have great interests (for instance, Afghanistan, Colombia, Georgia, and now, Palestine). It also comes as no surprise to scholars participating in conferences during which diplomats representing the major powers (in fact, mostly the US) signal to ICC judges on the front row of the same audience how the ICC should act—posing rhetorical questions that require no answer from the academic panel, but follow-up in practice. It comes as no surprise to attendants of the annual Assembly of States Parties, where the US, not a state party, has a bigger representation than many a state party. And it comes as no surprise to those who frequent diplomatic receptions in The Hague, where ICC officials mingle freely with European and US representatives.

The argument is important because of the way in which Bosco makes it. First, it is common for this argument to be made by observers, only to be contested by Court officials who insist that the current distribution of ICC activities around the world is the result of the pure application of law. Having extensively interviewed ICC officials and major-power representatives, Bosco, however, deploys his interview material in such a way that it is almost as if the officials themselves are making his argument for him. In the interviews, some court officials seem to express a sense of pride in their political savviness and satisfaction with their ability to placate the United States. As Bosco also points out, they often stress, in the same breath, their legal independence as well as their political usefulness. In this sense, the book reads as an inadvertent ‘coming out’ of a court that reveals its political nature to a world that had known all along.

Secondly, Bosco’s book sheds light on the various ways in which this mutual accommodation takes place and shows its nuances. For instance, he distinguishes between the Prosecutor’s great-power sensitive attitude in opening investigations and the bolder approach in selecting cases within those situations. More nuances could be explored — for example, to what extent does his argument apply only to the OTP and to what extent also to the judges? And does his entire argument apply to all nine states that he considers major powers (the P5 + Japan, Germany, Brazil and India)? Has the Court been as deferential to, for instance, Brazil as to the US?

The implications of this important argument are mostly left to the reader to surmise. Bosco seems to end on both a realistic and an optimistic note. Realistic in the sense that he concludes that the Court is more likely to reflect the double standards of existing global governance structures than to alter them. Optimistic in that he argues that other international justice initiatives (among which the post-WWII tribunals and the courts for the former Yugoslavia and Rwanda) were similarly constrained, and yet were celebrated and served as inspiration for the ICC. He concludes that it would therefore ‘not be surprising if the world is willing to tolerate an international justice system constrained by major-power interests’.

There is reason to pause here. Were these tribunals truly celebrated, universally? One could argue that it was not their success, but their major shortcoming — selective justice — that served as inspiration for the creation of a permanent international criminal court with potentially global jurisdiction. Many non-major-power states signed up to the ICC precisely because of its promise of equality before the law: this international institution might be able to do what less powerful states could not do individually, namely hold the more powerful states, through their individuals, to account. Hence the insistence of many developing countries that the Court’s jurisdiction included the crime of aggression, a crime characteristically committed by the more powerful vis-à-vis the less powerful. The other side of Bosco’s argument that major powers control an international court is thus that smaller powers, in particular developing countries, have suffered yet another disillusionment in the emancipatory potential of international law (for other examples of international law’s boomeranging against those states taken by its promise of equality, see Sundhya Pahuja’s “Decolonising International Law”).

The implications of Bosco’s cogent argument are thus potentially much grimmer than he suggests, and many could be mentioned. But let’s focus here on two, namely one related to what the Court cannot do and one concerning what type of justice the ICC actually does. The ICC was established as a permanent international criminal court, complementary to national criminal jurisdictions, to investigate and prosecute international crimes within its jurisdiction with a view to addressing impunity. Pursuant to the complementarity principle, the Court is meant to address impunity in those instances where a case is not being, or has not been, genuinely investigated or prosecuted at the domestic level. One of the key causes of impunity at the domestic level is the pervasiveness of patronage systems, namely systems in which governments obtain loyalty from powerful actors in exchange for arms, government positions, cash, security, and indeed, impunity. In such scenarios, the state is unwilling or unable to call perpetrators to account, leading to an absence of genuine proceedings, and thus to admissibility of cases before the ICC. However, as Bosco’s argument suggests, the ICC itself is also embedded in a de facto patronage network: to some extent it accepts impunity with respect to powers on whose cooperation it depends in order to achieve accountability for others. Consequently, it is not just states but sometimes also the Court that is inactive. However, there is no ‘court of final resort’ to back up ‘the court of last resort’. Some types of impunity thus appear beyond the reach of the Rome Statute.

If justice is interpreted to mean criminal accountability, then the fact that some people are shielded from such justice does not mean that others should or would therefore go scot-free, too (see also the ICTY in Čelebići, para. 618). On that view of justice, a Court subjected to major-power political constraints seems better than no Court: every bit of accountability is welcome. However, as soon as one adopts a more holistic conception of justice, the continued selective operations of the Court are more problematic. For instance, if one considers equality before the law as an element of justice, then the current practice may do more harm than good: material inequality among states leads to de facto inequality among individuals. Moreover, by cloaking that inequality in legal procedures and arguing that all the Court does is follow the law, the Court is effectively affirming material inequality among states, and transforming it into a juridically relevant fact, thus justifying a departure from the principle of equality and legitimising and further entrenching inequality (see, more elaborately, here). That inequality does not merely dictate who ends up in the Court’s detention centre and who does not. It also determines who intervenes where in the world under the legitimising cloak of international criminal justice. Bosco shows how an initially anti-ICC US Government favoured the Court’s intervention in northern Uganda because it provided a hook for more western military involvement in Africa. And the ICC bestows such military operations with legitimacy, sometimes even explicitly. For instance, an OTP official has stated:

“We have our shopping list ready of requests for assistance from the American government … The American government first has to lead on one particular issue: the arrest of sought war criminals. … We need … the operational support of countries like the U.S., to the DRC, to Uganda, to the Central African Republic, to assist them in mounting an operation to arrest [LRA leader Joseph Kony]. They have the will – so it’s a totally legitimate operation, politically, legally – but they need this kind of assistance. And the U.S. has to be the leader.”

Thus, as Adam Branch has observed, ‘the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice’.

Another type of justice negatively affected by the practice of selective criminal accountability is that of distributive justice. As Frédéric Mégret has argued, international criminal justice distributes blame. While in a cosmopolitan vision it does so only among bare individuals, it is in practice also seen to distribute stigma among the communities to whom these individuals belong. With its current focus, the ICC distributes all the blame to Africa. In an attempt to justify this focus, Court officials have painted Africa as the heart of darkness. The OTP, for instance, has stated:

“About targeting Africa. There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40.000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.”

By conjuring this bleak image, the OTP not only explicitly justifies its Africa focus. It also implicitly exonerates the rest of the world. The fact that all the attention of the world’s only permanent International Criminal Court is usurped by Africa invariably suggests that the world’s worst crimes and worst criminals reside in and stem from that continent. Crimes committed on other continents, and the role of other actors in creating the conditions for African crimes, thus become officially invisible as a result of the ICC’s averted eye. Selective justice as a result of mutual accommodation between the ICC and major powers thus has unjust distributive effects.

In sum, David Bosco’s argument is more important than his book suggests. For its implication is not merely the obvious one that the ICC cannot overcome all power politics—it is also that in its genuine pursuit to do some justice, it can end up doing some injustice, too.

The ICC Still Has a Chance

Aryeh Neier is president emeritus of the Open Society Foundations. He was president from 1993 to 2012. Before that, he served for 12 years as executive director of Human Rights Watch, of which he was a founder in 1978. He worked 15 years at the ACLU, including eight years as national executive director. He served as an adjunct professor of law at NYU for more than a dozen years, and has also taught at Georgetown University Law School and the University of Siena (Italy). Since 2012, he has served as Distinguished Visiting Professor at the Paris School of International Affairs of Sciences Po.

For more than three decades, since the transition from military rule to democratic government in Argentina in 1983, efforts to secure accountability for great crimes committed by public officials and leaders of guerrilla forces have been at the forefront of the concerns of the international human rights movement. The result has been establishment of so-called “truth commissions” in nearly fifty countries, mostly in Africa and Latin America, to disclose past human rights abuses and assess responsibility; vetting processes, sometimes called “lustration”, primarily in some former communist countries of Eastern Europe, to bar those implicated in past abuses from certain public positions; and, most notably, criminal trials in national courts, ad hoc international tribunals and in the permanent International Criminal Court. While all these efforts show mixed results, including a few that are regrettable, in combination they have produced a level of accountability for severe abuses of power that is unprecedented and that would have been previously unimaginable. Though leaders of the most powerful states of this era have so far not faced such proceedings, that may not continue indefinitely. Certainly, we have reached a point where high officials of less powerful states would be foolhardy to assume they can commit great crimes and enjoy impunity for the rest of their lives. It is no longer unusual for some whose crimes are long past to face a reckoning.

Consider Latin America. A former military dictator of Argentina, Jorge Videla, died in prison in 2013 while serving a life sentence. Another former military dictator of Argentina, Reynaldo Bignone, who is also serving a life sentence, will probably also die in prison. Augusto Pinochet, the former dictator of neighboring Chile, avoided such a fate because the courts of his country eventually decided when he was in his late 80s that he was too weak, physically and mentally, to be put on trial. The former military dictator of another country in the southern cone of Latin America, Juan Bordaberry, died in 2011 shortly after he was sentenced to prison for thirty years. A former President of Peru, Alberto Fujimori, is now in prison, serving a 25 year sentence. A former military dictator of Guatemala, Efrain Rios Montt, was sentenced in 2013 to thirty years in prison for crimes against humanity and fifty years for genocide before his sentence was overturned on difficult-to-understand procedural grounds by the country’s Constitutional Court. Though he is now 88 and in poor health, supposedly he is to be retried. Jean Claude “Baby Doc” Duvalier avoided trial for the crimes he committed when he was “President for Life” of Haiti when he died last October of a heart attack at age 63.

All these cases came before national courts. In the case of Pinochet, three countries, Spain, the United Kingdom and Chile, all had a part, and it was only because of the actions of the courts of the two European countries that the Chilean courts were ready to act. The Pinochet case in Chile also led to many prosecutions of lower level military officers for their crimes during the sixteen year dictatorship in that country. In Chile and several other Latin American countries, hundreds of military officers are now in prison, serving sentences or awaiting trial for crimes committed more than a quarter of a century ago.

The ad hoc international criminal tribunals are also responsible for a high level of accountability. This is particularly true for the tribunals for the former Yugoslavia, for Rwanda and for Sierra Leone; and even a few of those responsible for the atrocious crimes committed by the Khmer Rouge in the 1970s are now serving prison sentences. In general, the ad hoc international tribunals, like most national courts that have dealt with such matters, have conducted good quality trials. Principles of due process have been maintained. There have been significant acquittals as well as convictions.

The great disappointment for human rights advocates who have promoted accountability has been the performance up to now of the International Criminal Court. Since coming into existence twelve-and-a-half years ago, it has secured just two convictions, neither involving leaders with the highest level of responsibility for the crimes in their country. By now, it is necessary to raise questions about the ICC’s failure to achieve more. Is the concept of a criminal court with worldwide jurisdiction fundamentally flawed, or are their critical shortcomings in its design? Are there faults of judgment or execution by the court itself, and particularly by the Office of The Prosecutor, that account for its poor showing? Have major powers doomed the court to failure by unwillingness to support its efforts? Or is the ICC just off to a poor start, as was also the case – for a much shorter period – in the case of the ad hoc tribunals for ex-Yugoslavia and Rwanda?   Will the Court start demonstrating its worth and significance and, over time, fulfill the aspirations of those who sought its creation?

David Bosco does not try to answer all these questions, but his even-handed, well-researched and astute study provides us the information and analysis we need to think about these questions, debate them and formulate answers. Some, like me, who are eager to see the Court succeed, may be reluctant to speak bluntly about such matters. We may fear that expressing criticism will further weaken a body we should defend against those who want it to fail.

Putting aside that concern, my view is that the ICC’s failure to achieve more up to now reflects a combination of factors. At least one, I believe, is inherent in the concept. That is, it is impossible to imagine that the Court would enjoy independent capacity to enforce its actions. It may only secure the presence of defendants through their voluntary appearance or through assistance by those who control the territories where defendants are located. Such assistance will often have to be provided as a result of pressure from the major powers. Similarly, the ICC cannot by itself compel the presence of witnesses or the production of evidence.   It is also limited in its independent ability to send investigators to sites where crimes took place. The likely consequence is that, in the absence of substantial support from the major powers, the ICC will mainly be able to deal with crimes committed by leaders who have been defeated militarily or overthrown within their own countries. The successes of the ad hoc international tribunals are attributable in large part to cooperation they eventually obtained from major powers, such as those that deployed troops in Bosnia under NATO following the war there. So far as national prosecutions are concerned, it has only been after democratic governments came to power that former military dictators and their collaborators were made to face judgment.

A flaw in the design of the Court that is probably impossible to overcome and, therefore, might be regarded as a flaw in the concept, is that without the involvement of the UN Security Council, the ICC only has jurisdiction in the territory of the 122 states that are members of the Court or over the forces of member states. Many states where abuses are common have not become members and are unlikely to do so. In the absence of a Security Council resolution, the ICC cannot address the crimes committed in states such as Syria or North Korea. As such states may have protectors among the permanent members of the Council with veto power, the ICC is unable to address many ghastly crimes that should fall within its jurisdiction. Unfortunately, there seems no feasible way to address this shortcoming.

Faults of judgment or execution by the Court itself ought to be less difficult to overcome.   David Bosco’s study reinforces my view that the Court might have fared better up to now if the first prosecutor had been somewhat wiser and somewhat bolder in dealing with the major powers. Mr. Bosco points out that the work of the court “appeared to be occurring within a major-power comfort zone.” This seems a fair assessment of the first Prosecutor’s unwillingness to initiate prosecutions involving Afghanistan and Colombia and in the war between Russia and Georgia. In each of these cases, of course, there were good arguments against prosecutions. On balance, however, I think the ICC would have been strengthened and justice would have been served if prosecutions went forward and – this is crucial – if the Prosecutor also were able to personify justice in speaking publicly on behalf of such actions. The first prosecutor of the Tribunal for the Former Yugoslavia, Richard Goldstone, through his ability to embody justice, enabled that body to acquire the credibility that ultimately made it a success. I think the current ICC Prosecutor may demonstrate that she too has the capacity to play such a role.

Can the Court recover from what has already been a rather lengthy poor start? I think so. At this writing, at least two major issues involving the Court’s jurisdiction are in the news. One involves the resolution of the UN General Assembly calling on the Security Council to refer North Korea to the ICC. Will China and/or Russia veto a referral?   The other involves the effort by Palestine to become a member of the Court, and implicitly, to get the ICC to deal with such matters as the Israeli settlements and the conflict in Gaza.   Though it is not possible to foretell the outcome of these developments, their public significance shows that the world has not written off the ICC. Despite shortcomings and obstacles, it still has a chance to demonstrate that it can make a major contribution to the cause of accountability. Those of us who wish to advance that cause should help the ICC do its best and, at the same time, acknowledge that there are significant limits on what it may be able to accomplish.

The Inevitably Difficult Choices a Prosecutor Faces

Alex Whiting is a Professor of Practice at Harvard Law School focused on international and domestic criminal justice issues. From 2010-2013 he was Investigation Coordinator and then Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court. From 2002-2007 he served as a Trial Attorney and then Senior Trial Attorney at the ICTY.

David Bosco has written a terrific book on the first decade of the ICC, capturing how strategic considerations can help shape the decision-making of the Office of the Prosecutor (OTP) at the International Criminal Court (ICC), as well as the actions of major states that interact with the Court. The book is carefully researched and beautifully written, and it recounts in often fine-grain detail some of the real-world considerations that touch the OTP on an almost daily basis (from my experience working there). It is a must-read for anyone trying to understand how the Court operates.

I offer a cautionary note about the takeaway from the book, a thought about what the book implicitly shows regarding the significance of the Court, and finally a suggestion about future research and thinking about the OTP.

First, in summarizing the book’s thesis it is important not to lose the nuance and complexity contained in the book. It would be a mistake to conclude that the book simply shows that the OTP seeks to avoid conflict with major powers, including the United States, and in this way essentially does the bidding of those powerful states. This reading might be tempting because it aligns with other (pernicious) narratives at play in discussions about the Court, in particular that the Court has “targeted” weak countries in Africa. But the truth is otherwise and more complex. The OTP does not quake at the prospect of incurring the hostility of major powers. The reality is that the Court faces critical reactions and pressures from political actors all the time and is quite used to it. As Bosco describes in the book, the ICC was born into an environment of open hostility by the United States, and in later years the Prosecutor pushed forward with an arrest warrant for Omar Al Bashir in Sudan and warrants for Muammar Gaddafi and two others in Libya while knowing that these steps were not necessarily welcome in Western capitals. The Prosecutor never adopted a strategy of great-power accommodation, and I think that those diplomats from major powers who engaged with the Prosecutor would be more surprised than anyone to hear him described as “accommodating.”

At the same time, there is no question that major powers and not-so-major powers can shape the environment in which the OTP works. And is that really a surprise? After all, it is a deliberate design feature of the Court that it has extremely limited powers, though often it is evaluated and judged as if it had the tools and authority of a domestic criminal justice system. Accordingly, the Court is completely dependent on cooperation from states, NGOs and other organizations to conduct its investigations and prosecutions. As Antonio Cassese wrote, “[i]nternational criminal courts remain entangled in and fettered by the intricacies of sovereignty.” This dependence can create a space for states to affect the work of the Court, and in some cases completely stymie its progress. That is true for big and small states. Bosco suggests that the Court has hesitated to plunge into an investigation in Afghanistan or Georgia because of the presence of the United States and Russia, respectively, but it is also the case that the strong resistance of Kenya and Sudan to ICC investigations there have also undermined the workings of the Court. When the ICC investigates in a country it will generally succeed only if it has cooperation from the country itself or from influential countries that can compel cooperation (as happened with the ICTY).

So when the OTP sets its priorities it must consider how best to use its limited resources in a world where (sadly) there are many places demanding its attention. One factor it will consider among many is the likelihood of success (defined as a thorough and credible investigation). Afghanistan and Georgia involve non-State Parties that are not likely to give their full cooperation to the Court, and certainly could not be expected to arrest suspects and deliver them to The Hague. The situation with Palestine is the same since Israel is not a State Party, and for that reason I have predicted that the Court will not move quickly to open a full investigation. When the Security Council referred Sudan and Libya to the ICC, the expectation was that these referrals would be backed by continued Security Council support as investigations and prosecutions progressed, but that has not turned out to be the case, which may give the Court pause when there are future referrals. At the same time, the prospects for success may affect the priorities of the Court but will not necessarily determine ultimate outcomes. The OTP has not dropped the preliminary examinations in Afghanistan and Georgia and it has opened one in Palestine. Ultimately, even if the prospects for success are low, the OTP may feel compelled to move forward on all of these cases. The OTP may be strategic and realistic, but it is also principled and is both motivated and constrained by the law contained in its Statute. In sum, therefore, major powers (as well as smaller powers) can affect the environment in which the Court operates and, in this way, can affect the work of the Court, but they do not therefore “control” the Court.

Second, I think Bosco’s book shows that despite the ICC’s limited powers and its ability to prosecute only a few cases in each situation, its influence remains significant. It is striking that countries care so much about what the Court does and that major powers, in particular the U.S., have chosen to engage constructively with the institution. Why? Why don’t they just ignore the Court? It is clear that the ICC has significance that far surpasses the few cases it is able to do. Even the possibility of an investigation, let alone an actual investigation, can have important repercussions. The Court’s focus on a particular situation has the power to frame the debate that can in turn shape the larger political and diplomatic discussion. For this reason, the Court matters, and major and less major powers will continue to pay attention to it. It is, and will continue to be, relevant.

Third, the book touches on but does not directly seek to resolve the normative question of whether the OTP should act strategically. I believe, and I am quoted in the book on this point, that it should, but I recognize that this can be controversial and it is certainly complicated. The Prosecutor has the obligation to investigate and prosecute cases over which she has jurisdiction under the Statute, but she is also building an institution with a limited number of tools. Should she consider the political environment in which she operates when applying the law? Should she think about Afghanistan and Georgia differently than other cases? When she starts an investigation and she has the choice of investigating just one side or of being shut out and foreclosed from investigating either side, what should she do? What compromises, if any, should the Prosecutor accept? When is half a loaf better than no loaf? How important is success, even if it is limited and incomplete? These are hard questions for which there are no easy answers. Institutional and legitimacy concerns often fall on both sides of the equation. If the Prosecutor acts too strategically, then she risks appearing unprincipled and undermining the legitimacy of the Court. Yet if she pays no heed to strategic considerations, she risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and also potentially undermining its legitimacy. Thus the Prosecutor is left to balance these two approaches in light of the particular factors in each case. Sometimes she’ll tilt more one way, sometimes the other, and sometimes a zig-zag will be required. There is no one approach that will work in all cases. Instead she is continually required to make difficult (and often legitimately debatable) judgment calls based on incomplete information and unpredictable and evolving circumstances. Is there a way to think about how the Prosecutor should think about these decisions? Could more thinking be done on how the Prosecutor should balance the different imperatives in each case? Bosco’s book opens this debate but does not attempt to resolve it.

Power Politics and its Global Shadows: From Margins to Center

Kamari Maxine Clarke is a Professor of Anthropology and Law. Her research explores issues related to social and political theory, legal pluralism, international law, and the interface between legal institutions and the related production of knowledge and power.  She is the author of over forty books and articles.  Her most recent book is entitled Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009).  She is now in the process of completing a book on The African Union’s recent creation of a criminal chamber to address international crimes on the African continent.

Rough Justice: The International Criminal Court in a World of Power Politics is an eloquently articulated book about international criminal law and American unipolar power in the twenty-first century. Combining international relations (IR) scholarship with an unprecedented mapping of the conceptualization, growth, and crystallization of international criminal justice, author David Bosco tells a story about the play of power amongst “powerful states” as it relates to the formation and development of the International Criminal Court (ICC). By taking up the way that IR and legal scholars have conceptualized the workings of globally dominant state powers – especially in dealing with international organizations they do not formally control—the book explores the ways that major state powers have approached the ICC with either “marginalization” or “controlling” behavior. Moving beyond Robert Keohane’s classic theory (1984) that repeated interactions can produce rational cooperation, Bosco invokes the work of IR scholars, Barbara Koremenos, Charles Lipson and Duncan Snidal to argue that while the spectrum of state behavior – ranging from active marginalization, to control, and acceptance – can be deployed to manage the ICC, western states such as the United States have used forms of mutual accommodation to neutralize the threats of ICC encroachment. Bosco argues that major state powers have attempted to control the ICC (by engaging formal mechanisms such as the UN Security Council or informal diplomatic measures). In this way, the Court has become an instrument for “major powers” to respond to the instability of “weaker states”.

Yet, as much as Bosco’s conceptualizations of influence, decision-making, and the politics of state behavior are laudable, his trajectory reflects the workings of certain forms of power and does not fully take into consideration a large part of the story. By distinguishing between national states according to categories such as “strong” and “weak,” he sets himself up to miss nuances that are actually critical to how power and influence work in formal and informal settings. For example, once we recognize that the story of the origins of ICC justice is not simply one about the power of “strong” and “weak” states, we begin to understand international relations in more complex ways. We are called to make sense of the force of law, the play of sub- and supra-state power, and the relevance of political economy in the messy engagements between the Global North and the Global South.

Bosco begins his book with an inquiry into why and when so called “powerful” states joined or did not join the Rome treaty system. He spends very little time, despite the ICC’s Africa focus, exploring why those African states that eventually became the subjects of ICC investigations joined the treaty. Instead, he describes how political jockeying among Western states after Nuremberg and during and after the Cold War was key to contemporary state behavior among “strong states”. For Bosco, politics and control of the ICC is pivotal. He described crimes that were defined under the subject matter jurisdiction of the Court in the following way: “Efforts by some states to include crimes that had not been clearly defined internationally, including terrorism and drug trafficking, failed” (52). However, an investigation into why economic crimes failed and what that failure meant in relation to the de facto immunity of various Western states is critical to a full appreciation of the story. The identification of certain core crimes in the Rome Statute is consequential: whether the core crimes were spectacular and individuated crimes or economic crimes like drug trafficking is relevant to what ultimately comes under the Court’s jurisdiction. Rather than reading the construction of Rome Statute crimes as revealing broader political interests, however, Bosco instead takes up questions concerning the structure of the Court that are based on an acceptance that its subject matter jurisdiction occurs outside of the political. This assumption, that the making of the subject matter jurisdiction of the Court is separate from the play of politics, appears to establish his comfort with ICC crimes as political and individually driven rather than enabling crimes involving multiple economic interests, Western and nonwestern, rebels or democratically elected, and this orients his analysis of the brute forms of justice that are underway in the first decade of the ICC’s existence.

Because political economy and micro-politics of power are bracketed in Rough Justice, African resource-driven violence is relevant only insofar as it relates to Africans becoming subjects of the Court. What is missed – as a result – are the economic drivers of conflict and those Western interests that are being protected. Instead, the book asserts that the statute gave the Court jurisdiction over four crimes: aggression, genocide, war crimes, and crimes against humanity. These crimes are classified as those already elaborated in international law and therefore enjoying widespread acceptance. In the end, Bosco highlights the fundamentally “political” aspects of those crimes but stops short of analyzing the conditions of legal possibility by which African states became subjects of the ICC. Through his focus on the negotiations of major powers he forecloses the relevance of African states in ICC deliberations. Yet,it is the “powerful states” that shaped the conditions in which African states rather than European states became subjects of the Court, and in the shadows were a range of other crimes, enabling crimes, that Bosco dismisses without comment. And herein is the surprising absence in Rough Justice: the link between resource struggles that contributed to violence and the conditions of possibility in which enabling crimes fell outside of the Court’s orbit.

It is not possible to tell the story of the contemporary ICC and focus on the negotiations of Western powers without making connections between Western resource interests, plunder, and endemic violence. Despite the focus of Rough Justice on Western state power and its relationship with international institutions, the macro-story is actually one of continuities in economic disparities and the workings of broader structures of power. It is true that Northern states remained outside of the reach of the Court for all of the reasons that Bosco explains. However, such instances of inequality are not marginal to the play of international power. Rather, they are central to the way that African leaders or African rebel leaders and not US or French or British leaders became pivotal to the ICC’s exercise of personal jurisdiction. This analytic gap is compounded by the missing explanations of why a regional majority of ICC state parties joined the ICC in the first place. In fact, it was not the spirit of Nuremberg that inspired the moral impetus of African-ICC involvement. Rather, the Rwandan genocide and the euphoria of post-apartheid South Africa contributed to the mobilization of African interests in setting up a body that might deter such mass violence in the future. Further, many African states joined the ICC treaty system based on the formal and informal pressure of Western states, institutions, and civil society groups. Western state actors tied international treaty participation to monetary lending; signing treaties like the Rome Statute were used as statistical indicators for predicting various state economic outcomes. From state stability, state fragility, and the probability of violence, such measures helped to propel new rule-of-law institutions and contributed to the conditions under which submission to international treaties was initially welcomed by many states, as it allowed for the renewal of various aid package and loan renewals. With the shift to new linkage measures that connected demonstrations of good governance and the renewal of critically important loans (from the International Monetary Fund and the World Bank for example), signing international treaties became an indicator of good governance measures and was increasingly represented as state sanction of the new international order. These realities are critical to understanding the increasing significance of African states in the exercise of Rough Justice, and their absence from Bosco’s analysis is curious.

Africa enters Bosco’s analysis in relation to African violence seen as separate from Western interests. However, the violence in Africa pursued by the ICC, is not simply a narrative of violence begetting more violence. The discovery and extraction of natural resources like oil, diamonds, and gas has compounded situations of armed conflict across the African continent. Oil-rich Nigeria, for example, experienced ten successive military coups beginning in 1966, just a few years after independence and immediately following the discovery of its reserves. The struggle to control Nigeria’s government has always been in large part a struggle to control its massive resources. Minimal attention was given to developing state institutions. Instead, a highly centralized federal body with little to no accountability formed in its place. This is a pattern repeated across the continent. So it isn’t surprising that the race for political control in many African countries has led to electoral violence, and in some cases the development of rebel groups vying for political influence and the control of various extraction industries. The recent histories of the Democratic Republic of the Congo, Somalia, Liberia, Nigeria, Uganda, Sierra Leone, and Congo-Brazzaville all fit this trajectory – each with various international companies, rebel groups and governments deeply embattled in controlling resource extraction across Africa. In ICC ‘situation countries’, the reality is no different. From oil to coltan to various diamonds, gold and timber, the control of natural resources has been amongst the most important factors in Africa’s major conflicts. In the DRC, attempts by various actors to gain control over gold, coltan, and tin extractions such as tantalum and tungsten – used in commercial cellular phones, ipods, digital cameras and video recorders – continues to drive this complex conflict, drawing in neighboring states such as Rwanda that are backed by Western powers. Amongst the most central resource is oil; African states account for close to twelve percent of the world’s oil with large amounts being extracted from Nigeria, Cameroon, Equatorial Guinea and North Africa, as well as Sudan, the DRC and Chad – all regions that have recently experienced related conflict. Similarly, control of the Central African Republic and the DRC’s diamonds are also central to two of the ICC’s situation countries. Foreign multi-national corporations have been involved in extracting minerals in addition, to various African rebel groups engaged in fighting for control of those resources or selling them illegally. These realities demonstrate the relevance of highlighting economic crimes, such as pillage, alongside those seen as more spectacular such as genocide, crimes against humanity, war crimes and the crime of aggression. They also call into question the modes of liability for such violence that became framed through the individualization of criminal responsibility.

The second absence in Rough Justice is the relevance of the anti-ICC response by African states as a critical component of the play of power in the past six years of the Court’s existence. Since the warrants of arrests issued by President al-Bashir in Sudan and subsequent African leaders, as the basis for their growing opposition to ICC interventions, various African leaders began to criticize publically the ICC for its partiality and selectivity of African defendants as well as for the de facto immunity enjoyed by the West. Yet, Bosco’s timeline ends at the moment when a new development is underway in international relations jockeying – namely, the Africa-ICC push-back. Contrary to his 10-year analysis that focuses on the US and P5 power, developments have taken shape since 2012 by which the Court has started to take the objections of African states more seriously. Most notably, the Court’s second Prosecutor, Fatou Bensouda, as well as a large group of States Parties, have called for “a dialogue” with the AU and with individual African states.

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya in March 2013 has shifted the African landscape as it relates to the ICC. In the fall of 2013, the commencement of Ruto’s trial and Kenyatta’s pre-trial hearing generated such political turmoil that the Court and its States Parties were forced to respond. At the 2013 Assembly, States Parties ‘gave in’ to one of the AU’s demands by amending the Court’s rules on presence at trial for those accused before the Court who also fulfill extraordinary public duties at the highest national level–such as sitting Heads of State. As a result of perceptions of inequality, various African states criticized the ICC and called for amendments to the Rome Statute, insisting that sitting Heads of State should become immune from prosecution by the Court.

African leaders have also expedited the process of establishing the African Court of Justice and Human and People’s Rights (African Court). This involved extending the jurisdiction of the African Court to include a range of transnational crimes and introducing modes of liability that include individual and corporate liability. The result was the early formation of an ‘African Criminal Court’, which expands punishable crimes from crimes against humanity, war crimes, genocide, and the crime of aggression to those seen as relevant to Africa’s economic resource wars and illegal economies. The expansion of punishable crimes includes piracy, mercenarism, terrorism, corruption, illicit exploitation of natural resources, money laundering, the crime of unconstitutional change of government, and the trafficking of drugs, persons, and hazardous waste. These developments, as well as the reality of economic drivers of conflict, are central to the play of power in international institutions– not peripheral to it. They are an example of the workings of itinerant forms of power that prove difficult to trace within the “strong” state paradigm that Bosco’s analysis employs. To capture the complexity of the ICC’s work and the broader political economy in which it operates, we must carve out conceptual spaces for understanding human action and behavior that are not tied to rational cognitive processes leading to mutual accommodation, but that instead capture the inchoate and messy responses to international law. These responses reveal other assemblages that are as central to how “rough” justice can be when justice is understood through the conditions of possibility, the entanglements of interests, and the real effects of power.

On the Independence of International Prosecutors

Richard J. Goldstone is a former Justice of the Constitutional Court of South Africa. He was the first Prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia.

David Bosco’s book Rough Justice contains an excellent survey of the first decade of the International Criminal Court (ICC) and, in particular, of the role played by its first Chief Prosecutor, Luis Moreno Ocampo. Ocampo’s sometimes active and sometimes passive role with regard to each of the nine situations presently before the Court are carefully and comprehensively described and analysed.

The central theme that runs throughout is the role of politics and especially major power politics with regard to the decisions taken by the prosecutor and its influence on the successes and failures of the Court. The development of that theme is set against the history of the international criminal tribunals that preceded the ICC.

In setting up the two UN ad hoc tribunals for the former Yugoslavia and Rwanda, the major Western powers, and especially the United States, played an indispensable role. As the cold war had ended and atrocities were again being perpetrated in Europe, in 1992 Russia and China were prepared to support an ad hoc war crimes tribunal under the auspices of the Security Council. When, soon after, Rwanda initiated a call for a similar tribunal in response to the genocide committed in its country in the middle of 1994, the Security Council could hardly refuse. Importantly, both of those tribunals were in no way inconsistent with the foreign policies of the P5 members of the Security Council.

The successes of the ad hoc tribunals and of the “hybrid” Special Court for Sierra Leone encouraged a number of less powerful nations, under the leadership of Canada, to call for a permanent international criminal court. They found it to be unacceptable that the final decision on whether to investigate atrocity crimes should be left to the Security Council subject to the veto power of the P5. The United States, China and Russia had some misgivings about such a court. They realised that it would operate outside their direct control. With the international courts established by the United Nations they were able to exercise a large measure of control over the jurisdiction, reach and powers of the court. They could not necessarily dictate policy to independent prosecutors and judges but they could certainly control their jurisdiction, resources and, to a large extent, the implementation of their orders and responses to their requests.

I feel more strongly than does Bosco about the extent to which international prosecutors have acted independently of the views of the major powers. He does refer to the actions of Ocampo in calling for an arrest warrant for President Omar al-Bashir of Sudan in the face of objections from all of the P5 members of the Security Council. However, he raises some doubts about the reasons for other decisions such as the decision by the ICTY prosecutor deciding not to investigate alleged NATO war crimes in Serbia during 2000; the ICTR prosecutor deciding not to investigate war crimes allegedly committed by the RPF during 1994 in Rwanda; and some of the investigations abandoned by Ocampo. I will respond briefly.

With regard to alleged war crimes committed by NATO during its bombing campaign in 2000, the Prosecutor (Carla del Ponte) accepted the advice given her by the ICTY’s chief international lawyer to the effect that the evidence available was not sufficient to justify a formal investigation. In particular he came to the conclusion that there was no basis upon which indictments could be issued against individual officials. The evidence was clear that the NATO leaders, political and military, were at pains to avoid, to the extent possible, targeting civilians. At worst, the allegations of civilian casualties were a consequence of negligence or errors of judgment. There was no evidence at all to suggest intentional targeting of civilians. In any event, war crimes that might nonetheless have been committed by NATO were substantially less grave than those that were being investigated by the ICTY against the Serb military. Serbia, under Slobodan Milosevic, had been conducting an egregious campaign of ethnic cleansing against the Albanian population of Kosovo. Even if, as Bosco, suggests, NATO was unwilling to furnish information to the prosecutor concerning its conduct, I would suggest that Del Ponte’s decision was a justifiable one.

The case of RPF crimes allegedly committed in Rwanda is a more complex and unhappy one. As Bosco points out, the allegations of crimes committed against civilians were serious and merited the attention of the prosecutor. While they were not committed with genocidal intent, some of them appear to have reached the level of crimes against humanity. At the time that the allegations emerged it must have been obvious to both Louise Arbour and Carla del Ponte that if an investigation had been launched, the Government of Rwanda would have severed its relationship with the ICTR. In that light, the choice would have been to proceed with the RPF investigation in the knowledge that the response from Rwanda would effectively have brought the life of the tribunal to a premature end. It could not have proceeded with trials without witnesses and evidence from Rwanda. The mission of the ICTR was to investigate the genocide committed in 1994. I would suggest that the prosecutor was justified in abandoning the RPF investigation in order to enable her to continue with the primary mission of the ICTR. That this was not stated openly is a matter for regret.

With regard to the record of the prosecutions initiated by Ocampo, Bosco’s conclusion reads as follows:

“There is no “smoking gun” evidence that the prosecutor has made these choices because of perceived major-power preferences or out of a desire to avoid entanglement with them. There are plausible nonpolitical arguments against investigations in each of these cases. Because the prosecutor has only infrequently explained a decision not to open an investigation, moreover, there is little documentary evidence to assess. But the overall pattern strongly suggests that the prosecutor’s office has, to this point, used its discretion on where to open investigations strategically.”

That prosecutors take into account the support that one or other investigation and prosecution will receive from relevant governments seems to me to be obvious. It would indeed be folly to leave that out of account. There are many issues and considerations that dictate whether this or that investigation is appropriate. They include the gravity of the alleged crimes, the evidence available or likely to become available, the official position of the alleged perpetrators and the time, effort and expense of the investigation and prosecution. There are others. One is certainly the prospect of cooperation from relevant governments. It is in this respect that the United States is of particular importance. The intelligence information that it furnished to the prosecutor of the ICTY is well known.

In conclusion, the success of any international court will depend upon its independence and especially from the great powers. It was primarily for that reason that the ICC was established. The selection of its judges and their actual and perceived independence are crucial and no less that of the prosecutor. It is in this context that the issues raised and objectively analysed by Bosco are so important.

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.

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;


  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.





“En vue de”: The Significance of the French Equivalent of “Purpose” in the ICC Statute’s Complicity Provision

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).

Interpreting “for the purpose of facilitating” in Article 25(3)(c)?

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.