Category Archives: BLOG

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.

Human Rights, No Dogmas: The UN Guiding Principles on Business and Human Rights

John Tasioulas is Chair and Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at King’s College London and, during 2014-15, a Fellow at the Radcliffe Institute for Advanced Study at Harvard University. He is the co-editor of The Philosophy of International Law (OUP, 2010).


The Guiding Principles on Business and Human Rights (GPs) are a bold and imaginative experiment in human rights governance. It would be premature to hazard a definitive verdict on their overall success in raising the level of human rights compliance among corporations. However, there are promising signs that the principles are becoming entrenched in what John Ruggie has called “the regulatory ecosystem for business and human rights”.[1] Still, I believe we can already conclude that the GPs vividly illustrate the impressive flexibility possessed by human rights as regulatory tools. This is in stark contrast to recent efforts by leading philosophers – including John Rawls, Jürgen Habermas, and Joseph Raz[2] – to regiment the concept of a human right in various ways. The irony is that such exercises in conceptual regimentation are usually advanced on the basis that they reflect the real world practice of human rights. Yet this same practice, as exemplified by innovations such as the GPs, breaks the conceptual shackles that philosophers have sought to place on it, and does so for compelling reasons.

Two dogmas about human rights are especially prominent among these conceptual shackles. The first is the statist dogma that human rights impose obligations exclusively or principally on states. This has the automatic effect of rendering problematic the very idea that business enterprises bear primary, rather than derivative, human rights responsibilities. The other is the legalist dogma that human rights, even if they are not themselves fundamentally legal standards, are to be implemented exclusively or principally through the medium of (enforceable) law. The two dogmas make natural companions, since it is states that play the central legislative role at the global, regional and national levels. And, with respect to international human rights law, at least, states are normally taken to be the only or primary duty-bearers. But even supposing that the two dogmas are faithful to the nature of human rights law, it is doubtful that they are true of human rights understood as underlying moral-political ideals.[3]

The GPs mount a frontal assault on statism by assigning human rights responsibilities to corporations quite independently of any legal or other demands their home or host states may impose on them. Moreover, to the extent that they bear these responsibilities, it is not because corporations are deemed to be ‘state–like’ entities that discharge governmental functions. This is made clear by the fact that the GPs assign corporations and states significantly different responsibilities. States have a governance duty to promote human rights compliance by third parties, for example, through the enactment of human rights laws that bind business enterprises. By contrast, no such governance role is ascribed to corporations. Instead, they are obligated only to respect human rights in their own activities, including in their relationships with third parties. Such respect includes taking appropriate remedial and other measures in response to their human rights violations or those of their partners. These differential responsibilities respond directly to the concern, voiced both within and beyond the business community, that the GPs will lead to an undesirable “privatisation” of human rights. The line between “protect” and “respect” is meant to ensure that corporations are not lumbered with – or, from a different perspective, do not usurp – obligations that properly belong to governments.

The anti-legalism of the GPs is signalled in a number of ways. Although the names, and perhaps the content, of the human rights that corporations should respect are derived from international human rights law, the GPs do not in themselves possess any legal standing. Instead, they are intended to provide an authoritative and publicly acknowledged specification of the human rights responsibilities applicable to corporations. In this way they can act as focal points for co-ordination that help overcome obstacles to human rights compliance on the part of both states and business enterprises. As Ruggie nicely put it in his monograph Just Business, the GPs address the question of “[w]here companies should look for an authoritative enumeration, not of human rights laws that might apply to them, but of human rights they should respect”.[4] This assumes, correctly in my view, that human rights are not fundamentally legal standards, but independent moral-political standards that human rights law often seeks to embody and implement.

But, in fact, the GPs are even more radically anti-legalistic than the previous paragraph suggests. Not only are they not legal standards, we should also not conceive of the GPs as standards that always ought to become law, “laws-in-waiting”, as it were. Indeed, in rare a moment of philosophical self-disclosure in Just Business, Ruggie endorses Amartya Sen’s view that treating human rights either as the progeny or parents of law would “unduly constrict – Sen actually uses the term “incarcerate” – the social logics and processes other than law that drive enduring public recognition of rights”.[5] This idea feeds into Ruggie’s broader conclusion that human rights should be secured through forms of “polycentric governance” in which international and domestic legal mechanisms, in all their diverse manifestations, are one modality of governance among others, with their deployment being dependent on their comparative efficacy.

The general idea that law is just one institutional mechanism for implementing human rights has numerous implications in the GPs. One is a welcome emphasis on fostering a human rights consciousness within the ethos of day-to-day corporate life, primarily by means of embedding routine forms of due diligence geared to identifying, preventing, and addressing adverse impacts on human rights. Another is the idea that business-related human rights violations are to be remedied through non–judicial, as well as formal judicial, grievance mechanisms. Again, the GPs here plausibly challenge the naïve assumption that any human rights violation worthy of the name must always be subject to legal redress. Of course, there are conditions that any adequate non-judicial mechanism will need to satisfy in order to be effective, including safeguards against corporations becoming judges in their own case.

Another important aspect of the GP’s anti-legalism is the idea that significant improvements in human rights compliance by business can be achieved in the absence of a comprehensive legally binding instrument, such as a multilateral treaty on the topic. The objections to such a treaty are a combination of the pragmatic and the principled. Among the pragmatic, there is the dearth of state support for such a treaty or consensus as to its provisions, the inordinate amount of time it would need to be negotiated, and the risk that states will use this delay as an excuse for not taking action. Among the principled, the concern that a universal treaty would either unduly constrain state discretion in striking a balance among competing considerations or, alternatively, that it would be too vague to provide effective guidance.

In line with his appeal to “polycentric governance” and a “smart mix of measures”, Ruggie contends that the GPs can prepare the ground for further legal developments, including the use of more limited treaties as “precision tools”. Elaborating on this suggestion, in his Geneva speech Ruggie proposed that consideration be given to a “legal instrument addressing corporate involvement in the category of “gross” human rights violations”,[6] since this class of human rights abuses is the most severe and its eradication has the backing of a broad international consensus.

I want to conclude by raising two questions about this attractive proposal. The first relates to how the category of “gross” human rights abuses is to be picked out. Ruggie had previously suggested that the category included those violations “that may rise to the level of international crimes, such as genocide, extrajudicial killings, and slavery or slavery-like practices”.[7] However, criminality is a problematic criterion. First, there is considerable variation within the category of international crimes as to both severity and consensus. Piracy, for example, although an international crime, is hardly on the same level of moral turpitude as slavery. One response to this concern is to invoke particularly heinous sub-category of international crimes, such as crimes against humanity. But even assuming that a crimes against humanity approach, with its requirement of a widespread or systematic attack on a civilian population, is not unduly restrictive, another problem remains. Criminality carries the implication that the most appropriate, or even required, remedy is punishment. This will be especially so when grave wrong-doing of the kind entailed by crimes against humanity is in question. Although the punishment of corporations or their officers may often be warranted for their involvement in gross human rights violations, it would be undesirable to obscure the need for other sorts of legal responses, such as injunctions or compensation orders.[8]

In view of the foregoing difficulties, perhaps a superior general criterion for identifying the relevant human rights violations is by reference to norms that enjoy the legal status of jus cogens – international legal norms that bind all states irrespective of their consent. The creation of a more limited treaty on business and human rights could then be seen as one way of discharging the universal obligation on states to secure this special category of rights. This proposal, however, is hostage to the ongoing controversy about which norms, including which human rights norms, qualify as jus cogens. Yet another possibility is to abandon the search for a general criterion and to adopt a more piecemeal and opportunistic approach. Treaties could be established to trouble-shoot particular kinds of corporate human rights violations, e.g. a treaty to combat the targeting of children by the tobacco industry. I suspect the latter, more modest strategy may well be the most effective and realistic in the foreseeable future.

I turn now to my second question about Ruggie’s proposal. One reason he gives for opposing a comprehensive multilateral treaty is its scale: “while business and human rights may be a single label that we attach to a range of activities, it is so vast, diverse, and conflicted an issue area that it does not lend itself though a single set of comprehensive and actionable treaty obligations”.[9] But why is the single set of responsibilities articulated by the GPs any less subject to this objection? Surely they too are supposed to be “comprehensive and actionable”? One possible reason Ruggie may have in mind – and here I am engaging in speculation, partly in the hope that he will disown this interpretation – is that the GPs are more flexible than treaty provisions in being ultimately rooted in “social expectations”. That they are so rooted is an idea that repeatedly crops up in Just Business. But this imagined response raises the vexing prospect that the level of human rights protection afforded by the GPs will vary from society to society depending on nothing more than contingent facts about the “expectations” of the host society. The idea of unitary human rights standards for the entire globe goes by the board. In consequence, Western transnational corporations operating in the less developed countries will be subject to weaker standards, corresponding to the minimal “expectations” of societies accustomed and resigned to oppression. By contrast, non-Western transnational corporations, of which Ruggie rightly points out there is an ever-increasing number, will be held to much higher standards when operating in Western environments. Whatever the advantages of the GPs over a comprehensive multilateral treaty, the licensing of double standards in human rights governance cannot be among them.

[1] J. Ruggie, Closing Plenary Remarks, 3rd UN Forum on Business & Human Rights, Geneva, December 3, 2014.

[2] J. Rawls, The Law of Peoples (Harvard University Press, 1999); J. Habermas, The Postnational Constellation (MIT Press, 2001); J. Raz, ‘Human Rights without Foundations’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, 2010).

[3] J. Tasioulas, ‘On the Nature of Human Rights’, in G. Ernst and J-C Heilinger (eds), The Philosophy of Human Rights: Contemporary Controversies (de Gruyter, 2012), pp.17-59.

[4] J. Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton & Co, 2013), p.96.

[5] J. Ruggie, Just Business, p.xxxv.

[6] J. Ruggie, “Closing Plenary Remarks”, p.7.

[7] J. Ruggie, “A UN Business and Human Rights Treaty?”, 28 January 2014, p.5.

[8] For sage reflections on the ‘awkward fit’ between human rights and criminal law, see O. Fiss, The Dictates of Justice: Essays on Law and Human Rights (Republic of Letters, 2011), ch.5.

[9] J. Ruggie, “Closing Plenary Remarks”, p.6.

Incorporating Rights: Making the Most of the Meantime


Erika George is a Professor of Law and Co-Director Center for Global Justice at the S.J. Quinney College of Law of the University of Utah and author of the forthcoming, Incorporating Rights: Corporate Social Responsibility, Conscious Communities and Transnational Orders under contract Oxford University Press.


In June 2014 the U.N. Human Rights Council adopted a resolution establishing an open-ended intergovernmental working group to commence deliberations and draft an international legally binding instrument on transnational corporations. The Council also agreed to extend the mandate of the U.N. Working Group on Business and Human Rights, the entity created to promote the U.N. Guiding Principles on Business and Human Rights. The Guiding Principles are a non-legally binding set of standards created consistent with an earlier Council mandate to “operationalize” the “Protect, Respect and Remedy Framework.”

The Council’s action advancing treaty talks could be seen as calling into question the durability of the Framework and Guiding Principles or as undermining short and medium term measures to address business and human rights challenges. This would be unfortunate, but as various stakeholders contest the merits of a binding international instrument in light of the Council’s actions many observers are asking: which direction should the business and human rights movement go?

It is now clear that the movement will take parallel paths. Work must proceed on several fronts to ensure that business enterprises align their practices with respect for human rights. However, I believe the movement stands to advance human rights protection farther faster by insisting on more aggressive implementation of the Guiding Principles. In the absence of a binding international agreement, or until one is put in place, I believe future efforts should place emphasis on two things to advance protection: (1) the importance of access to information about business impacts on human rights, and (2) the imperative of access to a fair forum to provide remedy to victims of rights violations.

I do not believe another international human rights treaty will be sufficient to bring about the constructive changes necessary to ensure that human dignity is not disregarded in today’s dynamic global economy. Constructive change will require more than law. It will require that we cultivate ethical business cultures through ensuring that human rights are incorporated into business strategy as a matter of routine daily decision-making. I believe the Guiding Principles provide a more promising path for bringing business conduct into alignment with respect for human rights by contributing to the creation of conditions that could change the culture of global commerce.

In his closing plenary remarks to the Third U.N. Forum on Business and Human Rights in December 2014, the former U.N. Special Representative for Business & Human Rights, Professor John Ruggie, reminded those stakeholders in attendance that the Guiding Principles were simply intended to be the “end of the beginning.” Accordingly, the Guiding Principles should not have been expected to end of all business and human rights challenges.

Indeed, challenges do remain and expectations have not been met. In her closing remarks to the U.N. Forum, Audrey Gaughran, speaking on behalf of Amnesty International, expressed support for an international treaty. She observed that little has changed for the victims of violations since the endorsement of the Guiding Principles. According to Amnesty International, it remains “easy and cheap” for the less socially conscious members of the corporate community to abuse human rights with impunity. In the organization’s experience, businesses continue to “deny and lie” even when confronted with evidence of abuse and only will compensate victims of violations after being compelled to do so by a court of law. The challenges identified by human rights advocates are real and more must be done to address them. Will the treaty proposal get us where we need to be?

Hard law will be hard to devise and it may not be the most appropriate device to address the business and human rights challenges of most urgent concern. Historically, there has been a lack of political support for binding international regulation in this area. For instance, an earlier effort to do so, the UN Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, drew strong and immediate objections. Political support for future efforts will likely remain weak. Moreover, as Professor Ruggie observed in his remarks to the Forum, business and human rights challenges are myriad: “while business and human rights may be a single label that we attach to a range of activities, it is [a] vast, diverse, and conflicted an issue area that it does not lend itself to governance through a single set of comprehensive and actionable treaty obligations.”

While proponents should not be dissuaded by the difficulty of developing a binding instrument or by political opposition to it, I am not particularly optimistic about the potential of the effort. First, the present proposal is too limited in scope. The focus on the conduct of transnational business organizations fails to appreciate that local businesses also impact human rights and are often linked to global supply chains. This limitation would be a step back from the Framework and Guiding Principles which take into account the risk of harm any commercial enterprise, no matter the size or location, has the potential to place human rights at risk. Second, it is far from clear that obligations set forth in a business and human rights treaty would be adopted or enforced. Several existing binding international human rights legal instruments are simply not enforced.

What the Guiding Principles offer is the potential for international human rights to be operationalized. If business decisions were made with human rights in mind, as the due diligence and impact assessment components of the Guiding Principles detail, many adverse impacts and rights abuses could be avoided in the first instance by those businesses enterprises that care to conduct business consciously.

To date, the Guiding Principles have been underestimated and under utilized. In some instances, the Guiding Principles have been unfairly criticized. Far from foreclosing future developments in laws or policies to address business and human rights challenges, the introduction to the Guiding Principles acknowledges the possibility of “promising longer-term developments” and invites “cumulative progress.” There is encouraging evidence that the Guiding Principles are gaining traction with some governments and among some segments of the business community that would be well situated to develop business practices that respect human rights, pass laws and provide forums for resolving disputes. A treaty will be a long time coming, if ever. In the meantime there must be progress towards advancing human rights protection. What should the business and human rights movement do to make the most of the meantime?

In the context of the treaty proposal, Professor Ruggie has suggested as an initial step consideration of “gross” human rights violations. While I appreciate the political feasibility of taking on the worst abuses first, it is in the banality of the day-to-day decision-making that a real difference can be made. I believe we must begin with more public information about the human rights impacts of particular industries and certain business practices. Exploring binding legal instruments that would require integrated reporting in high impact industry sectors could be a beginning. Transparency is a prerequisite for protecting human rights. Often exposure of abuses ends impunity and can contribute to accountability.

More can be done to promote transformation in business practices through greater transparency about human rights impacts. National Action Plans promoting transparency regulations could serve to bring about the conditions under which soft standards are strengthened. Presently, global supply chains connect conscious consumers and investors with conditions of production they would find unconscionable for the adverse human rights impacts involved.

The promotion of well-crafted transparency regimes requiring reporting about human rights impacts could serve to drive systemic changes by: (1) empowering consumers and investors to make informed choices consistent with their values, and (2) enabling commercial enterprises to address risks practices present to human rights and reverse adverse impacts. Information has an important role to play to in promoting an ethical business culture and preventing abuse—provided there are marketplace or other penalties. Abusing human rights must be made difficult and costly for business enterprise.

Having observed and participated in each annual U.N. Forum the renewed effort to advance a binding instrument did not come as a complete surprise to me. While business stakeholders at the Forum share strategies for developing impact assessments and due diligence programs, the concerns articulated by NGOs have centered on the third pillar of the Framework—access to remedy. The renewed push for a binding instrument is due in significant part to the Framework process falling far short of the expectations of certain stakeholder constituencies, particularly on the issue of access to remedy for victims of rights violations.

Pursuant to the Council Resolution renewing its mandate, the Working Group on Business and Human Rights will launch an inclusive and transparent consultative process with States in 2015 and open to other relevant stakeholders to explore legal and practical measures to improve access to remedy through judicial and non-judicial forums. This will be critically important work if the Guiding Principles and Framework process is to remain credible, particularly to victims of rights violations. Here, I would like to see more attention devoted to strengthening the capacities of the OCED National Contact Points to resolve disputes and more study of the potential reach of extraterritorial jurisdiction to provide access to adjudication of claims. Creating incentives for industry actors to address the issues raised by alleged victims of abuse must also be considered.

Stakeholders in the business and human rights movement speak of a “smart mix” to fix the global governance gap that gives rise to abuses. Hard law may be required to ensure access to remedy to victims, but soft law and standard setting should not be underestimated for preventing violations. To be clear, I do not oppose a treaty in principle. However, I do think the drafters would be well advised to heed the advice offered by Professor Ruggie—a business and human rights treaty should work to reinforce and to build on the regulatory dynamics already underway in the implementation of the Guiding Principles. I do not see the treaty proposal as a threat to progress but rather a call to redouble efforts and to focus attention on the work that still remains to ensure human rights are promoted and protected.

ERG

Corporate Human Rights Abuses and International Law: Brief Comments


Surya Deva is an Associate Professor at City University of Hong Kong, School of Law. He has published extensively on various aspects of business and human rights. His recent books include Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (co-edited with David Bilchitz) (Cambridge University Press, 2013) and Regulating Corporate Human Rights Violations: Humanizing Business (Routledge, 2012).


This blog entry offers brief comments on three interrelated aspects: the role of international law in regulating corporate conduct impinging upon human rights, the nature and scope of the proposed international instrument(s), and a potential alternative to move forward. In offering these comments, I will engage with the position taken by Professor John Ruggie on this matter, including his remarks at the 3rd UN Forum on Business and Human Rights held in December 2014.

Role of international law

I consider that international law has a critical role to play in ensuring that business enterprises comply with international human rights norms. There are two main reasons for this: first, operations of business enterprises are no longer constrained by artificial territorial boundaries; second, several states are unwilling or unable to act robustly against powerful corporate actors even within their territory or jurisdiction. As I allude below, an effective response to the second reason would require international law to move beyond an excessively state-centric orientation.

International law’s critical role is not, however, as a stand-alone device. Rather, international law should be part of a number of regulatory initiatives invoked in tandem to tame propensity of profit-driven corporations to ignore human rights. Ruggie calls this regulatory design a “smart mix of measures”. I see it in terms of an “integrated theory of regulation” in which multiple regulatory measures are employed in a cumulative and coordinated manner so that different initiatives could counter each other’s limitations (Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business, Routledge, 2012).

Against this background, the proposed international instrument(s) – in order to be useful – should cover the deficiencies and limitations of the Guiding Principles on Business and Human Rights (GPs) in humanizing business. Ruggie would like future regulatory legalisation to “reinforce and build” on the GPs. But I will caution that the process of reinforcement and building must not gloss over or strengthen the GPs’ deficiencies and limitations, e.g., that corporate human rights responsibilities are based solely on social expectations, that states only have a “duty to protect” against human rights violations by business enterprises, and that companies merely have a responsibility to respect human rights, (see Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, CUP, 2013).

The proposed international instrument(s) should be able to provide victims access to justice in situations where the GPs might fail to deliver, that is, where states are willing and/or capable to exercise their “protect duty” against corporations or where corporations do not see any clear business case to conduct due diligence to discharge their “responsibility to respect” human rights. In fact, I will argue that the proposed international instrument will be a necessary logical extension of the GPs: while complementing the GPs, such an instrument will also fill gaps inherent in them.

Nature and scope of international instrument(s)

There is extensive discussion about the need for a legally binding international treaty. Binding regulatory initiatives strengthen the overall regulatory efficacy because even voluntary initiatives work better under the shadow of obligatory regimes (and vice versa). It is telling that all major corporate settlements related to human rights abuses or environmental pollution, including the recent one involving Shell, have been offshoots of litigation against transnational corporations (TNCs). So, it is desirable to have binding international instruments regulating corporate behaviour.

However, considering that the obligatory nature of international law is very different in practice from the status of obligatory domestic laws, one should not overemphasise the need for a legally binding treaty over other considerations. A soft but normatively sound international instrument might prove more useful in practice as compared to a hard but a narrow or normatively deficient treaty. Non-state actors and a “coalition of the willing states” could turn a soft international instrument into a hard one in practice.

In terms of the scope of a future international instrument, Ruggie rightly highlights the “highly problematic” nature of the footnote of the Ecuadorian resolution adopted by the Human Rights Council in June 2014. Although certain developing countries might perceive that an international treaty is only required to deal with TNCs, having such a narrow focus will be indefensible, unworkable and politically unviable. Any proposed international instrument should apply to all types of business enterprises, as any attempt to limit its scope by providing a definition of targeted corporations will inevitably result in lawyers advising enterprises how to bypass the given definitional contours.

It is paradoxical, however, that Ruggie does not carry forward his expansive views in relation to another aspect having a bearing on the scope of the proposed treaty. For pragmatic reasons, Ruggie’s advice is to begin with a carefully crafted precision tool aimed at capturing egregious human rights violations. While this may sound sensible, this proposed path is highly problematic. If “the corporate form of the abuser is irrelevant” for victims (John Ruggie, ‘Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors’), equally irrelevant is whether human rights violations are regarded as “gross” or not. Why should the proposed international treaty exclude access to remedies for victims of the Rana Plaza building collapse or the Bhopal gas disaster for that matter?

I will also contend that calls for negotiating a narrow treaty that deals only with egregious abuses is reflective, among others, of the Global North’s prioritisation of civil and political rights over social, economic and cultural rights. For people living in the Global South – who suffer disproportionately due to corporate-related human rights abuses – the latter set of rights are equally, if not more, important. Why should the displacement of indigenous people for mining, emission of (and/or exposure to) hazardous chemicals, compulsory pre-employment pregnancy testing of women and illegitimate land grabs by companies be taken less seriously than slavery or genocide?

If the scope of the proposed international instrument is confined to egregious human rights violations, it will mostly serve a symbolic purpose for its ambit will exclude most of the human rights abuses. Nor will it capture important human rights under several core international conventions such as Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC) and the Convention of the Rights of Persons with Disabilities (CRPD), which the GPs do not expect companies to respect as part of their “minimum” responsibility.

A potential alternative to move forward

Ruggie raises legitimate concerns about the feasibility of negotiating a single comprehensive international business and human rights treaty, which are useful. Why will it be impossible to have a treaty when the GPs could cover the same vast, diverse and complex set of issues within the rubric of business and human rights in a single document? The answer lies, among others, in the GPs’ attempt to avoid controversial issues in this area. If the proposed treaty adopted the same approach, it might not prove useful. Conversely, if the treaty drafters decided to confront such complex controversial issues or outline the exact human rights obligations of companies, they might not be able to reach a consensus.

To overcome this dilemma, I suggest an alternative: we should start with drafting a Declaration on the Human Rights Obligations of Business (Declaration) along the lines of the Universal Declaration of Human Rights. The proposed Declaration should (i) provide a sound normative basis for why companies have human rights obligations, (ii) proclaim that human rights applicable to companies are not limited only to those mentioned in the International Bill of Rights but rather extend to those elaborated in all UN human rights treaties (iii) outline the principles governing the extent of corporate obligations in relation to these rights, (iv) envisage a number of state-focal and non-state-centric mechanisms to implement and enforce human rights obligations against companies, and (v) suggest ways to remove substantive, conceptual, procedural and financial obstacles experienced by victims in holding companies accountable for human rights violations. Keeping in mind the fractured nature of international law, it will be crucial for the Declaration to assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.

Once such a Declaration is in place, simultaneous and/or sequential efforts should be made to concretise the human rights obligations of companies in different areas and also clarify the obligations (including extraterritorial ones) of states in regulating corporate behaviour. This will entail negotiating and adopting a number of international instruments in due course. It may also be worthwhile to draft several Model Laws on specific areas to provide states with concrete guidance as to what legislative reforms and policy adjustments they should make to deal with the privatisation of human rights when acting at domestic, bilateral, regional and international levels. Such a process will of course take time, but that itself should not be a ground to delay initiating the above process.

The Declaration (and subsequent treaties) should employ a number of enforcement mechanisms – both state-based and non-state-based – at municipal and international levels to ensure the companies that do not comply with the agreed obligations could be held accountable in an efficient and speedy manner. In particular, the Declaration should contemplate the institutionalisation of the role of civil society organisation (CSOs) in enforcing and implementing human rights norms against companies. For example, a committee of CSOs in each state could be allowed to receive and deal with complaints of human rights abuses by business. Although such committees might not have formal enforcement and compliance powers, their determinations could be posted on a designated website to be used in dynamic ways by diverse stakeholders.

In additional to acknowledging the role of traditional civil and criminal sanctions in ensuring corporate compliance, the Declaration should underline the role of informal means and social (dis)incentives in enforcing human rights norms. These tools will be especially crucial for victims in those situations where states are unwilling or unable to act against companies for diverse reasons.

In short, the proposed international instrument(s) dealing with corporate human rights violations must not be overly state-centric. A deviation from the state-centric conception of international (human rights) law is required because states are not always consistent and reliable in enforcing human rights norms – this is one of the key reasons for the so-called governance gaps. If such instruments confer on states the exclusive power to enforce human rights norms against companies, they will do very little to fill the current governance gaps.

If the path proposed above does not find favour with enough states, then the option of evolving international norms “bottom-up” should be pursued, as business and human rights would require international law’s imaginative responses in the 21st century (Surya Deva, ‘Multinationals, Human Rights and International Law: Time to Move Beyond the “State-Centric” Conception?’ in Jernej Letnar Černič & Tara Van Ho, eds., Human Rights and Business: Direct Corporate Accountability for Human Rights (Wolf, 2015).

Closing Plenary Remarks, UN Forum on Business & Human Rights

John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts and Sciences. From 1997-2001 he served as the first-ever UN Assistant Secretary-General for Strategic Planning, where his responsibilities included establishing the UN Global Compact and proposing and gaining General Assembly approval for the Millennium Development Goals. From 2005-2011 he was the Special Representative of the UN Secretary-General for Business and Human Rights, in which capacity he developed the UN Guiding Principles on Business and Human Rights. His book reflecting on that experience, entitled Just Business: Multinational Corporations and Human Rights (W.W. Norton, 2013), has been translated into Chinese, Japanese, Korean, Portuguese, and Spanish.


 

Third United Nations Forum on Business & Human Rights, Closing Plenary Remarks, Geneva, December 3, 2014

I am honored to have been asked to make closing remarks at this third United Nations Forum on Business and Human Rights. When I proposed to the Human Rights Council in 2011 that it convene such an annual event, I hoped that it would turn into a global town hall meeting, where people from every region and every sector of society could come and share experiences with implementing the UN Guiding Principles on Business and Human Rights, and identify what additional steps might need to be taken to strengthen the promotion and protection of human rights in relation to business activity.

Moreover, when I presented the Guiding Principles to the Human Rights Council, I said that its endorsement would not end all business and human rights challenges, but that it would mark the end of the beginning—by providing, for the first time, an authoritative conceptual, normative, and policy framework, stipulating minimum standards regarding the respective duties of states and responsibilities of enterprises in relation to business and human rights, including the need for rights holders to enjoy greater access to effective remedy.

I further stated that implementing and building on the Guiding Principles would require “a smart mix of measures,” voluntary as well as mandatory, which are capable of generating cumulative change and achieving transformational scale.

What I’ve seen and heard these past three days shows that my vision for the Forum is being realized. We have learned a great deal about the achievements and also challenges in implementing the Guiding Principles. And we have heard vigorous arguments for and against a proposed binding instrument to regulate transnational corporations under international human rights law.

Let me stress at the outset that, given my commitment to “a smart mix of measures,” I see no intrinsic contradiction between implementing the Guiding Principles, on the one hand, and further international legalization, on the other. Therefore, I urge in the strongest possible terms that as the treaty negotiations unfold, we resist any attempt to polarize the debate as one between the Guiding Principles and a treaty.

At the same time, it seems only reasonable to expect that future legalization should reinforce and build on the regulatory dynamics that are already underway in implementing the Guiding Principles, which the Human Rights Council endorsed unanimously just three years ago. And if legalization is to be effective, it also must take into account the rapidly changing international landscape it seeks to influence.

So what are some of those regulatory dynamics? And what are the key features of the landscape that should inform further steps?

A graphic way to describe what has been achieved since 2011 is that the Guiding Principles are becoming embedded in the regulatory ecosystem for business and human rights, and that their place in this ecosystem has begun to expand from the international to the national and local spheres.

Almost from the start, elements of the Guiding Principles were incorporated into policies of other international bodies, public and private, including the OECD, the International Organization for Standardization, and the International Finance Corporation, whose standards are tracked by most project lending banks. The Guiding Principles are also drawn upon by regional initiatives, initially European Union, and more recently ASEAN, the African Union, and the Organization of American States. UN treaty bodies and Special Procedures increasingly reference them.

States have begun to take additional steps to act upon the Guiding Principles, ranging from comprehensive National Action Plans, to non-financial reporting requirements, down to the more granular level of the Peruvian Superintendency of Banks, Insurers and Private Pension Funds establishing human rights standards for local businesses that service international mining companies. The Guiding Principles also feature in China’s new Guidelines for Outbound Mining Investments.

Some of the measures that have already been adopted include binding legal and policy requirements, with penalties for non-compliance.

During the past three days we have also learned how businesses are aligning their policies and practices with the Guiding Principles, particularly the due diligence requirements and provisions for grievance mechanisms. We have heard that the International Bar Association and several national bar associations are engaged in efforts to incorporate the Guiding Principles into the practice of law firms and in house legal departments. The number of human rights complains brought to National Contact Points under the OECD Guidelines has spiked since the Guiding Principles’ adoption, as have shareholder resolutions raising human rights concerns, while workers organizations and NGOs report that they are using the Guiding Principles in their policy and legal advocacy work.

The Guiding Principles seem even to have had some influence in the world of investor/state arbitration. UNCITRAL, the United Nations Commission on International Trade Law, recently adopted new rules ensuring greater transparency and accessibility to the public, for which I lobbied at several Commission sessions. And a new generation of international investment agreements has begun to acknowledge the need for governments to have adequate domestic policy space for genuine efforts to improve environmental and social conditions, including labor standards and other human rights—an issue to which my mandate devoted considerable time and resources, focused in particular on Africa where highly asymmetrical contracts were standard practice in the past.

Most important, there is growing anecdotal evidence that where the Guiding Principles are being applied, the incidence of human rights harm is reduced. Effective due diligence and grievance mechanisms clearly contribute to that outcome. As for improvements in legal remedy, the Human Rights Council has tasked the Office of the High Commissioner with research and consultations addressing obstacles in cases where severe harm is done, and identifying practical solutions for reducing them. The results will be submitted to the Council for its consideration.

Of course, given the magnitude of business and human rights challenges, these achievements remain modest. Much more needs to be done, as I am the first to stress. But let me ask this of those who still harbor doubt about the Guiding Principles’ utility: how many treaties dealing with comparably complex and controversial subjects do you know of that generated this level of activity within three years of their adoption? I know of none.

Let me now turn to some key characteristics of the institutional landscape that any attempt at further legalization needs to bear in mind if it is to have any practical effect. I’ll highlight just three.

First, the issue of transnational corporations no longer falls easily into the North-South cleavage that drove UN coalition building in the past, and which some have sought to resurrect rhetorically in recent months. One of the most profound global geo-economic shifts today is the rapid increase of transnational corporations based in so-called emerging markets. In the year 2000 they numbered just 12 on the Fortune Global 500 list. In 2010 the number had risen to 85. By 2025 their number is expected to reach 230, or nearly half of the entire FG 500.

Let’s look at this picture a bit more closely. Who is the world’s largest oil company? Is it Exxon? Shell? No, it’s Saudi Aramco. None of the Western majors even makes it into the top 10. Who is the world’s largest manufacturer of electronic equipment? Samsung? Ericsson? No, it’s Foxconn, headquartered in Taiwan with production facilities in China employing 1.3 million people. Who is the largest manufacturing employer in the United Kingdom? Not to keep you in suspense, it is India’s Tata Group. Many of us like a good brew, so what about the world’s largest beer companies? Number one grew out of a merger between a Belgian and Brazilian company, and number two is South African. Notably, at the recent Asia-Pacific Economic Cooperation Summit, President Xi Jinping predicted that China’s outbound direct investment would reach US $ 1.25 trillion over the next decade, tripling its current level. We are entering a new and different world.

Why is this shift important for future international legalization? The answer is contained in how China’s representative explained its vote in the Human Rights Council on the resolution to launch treaty negotiations. The issue of business and human rights is complex, he said; and differences exist among countries in terms of their economic, judicial, and enterprise systems, as well as their historical and cultural backgrounds, which need to be taken into account. Thus, he continued, it will be necessary to carry out “detailed and in-depth” studies, and for the negotiations themselves to be “gradual, inclusive, and open.”

Bottom line: the larger the number and the greater the diversity of home countries of transnational corporations, the more complex the process of international legalization becomes in this space. Exactly the same has been true across all areas of international lawmaking, which is one reason why we have seen such a rapid expansion in the use of soft-law instruments, like the Guiding Principles, while the number of new multilateral treaties has declined dramatically for the past two decades—not a single one was deposited with the United Nations in 2011.

My second point is that a human rights treaty focused exclusively on transnational corporations is highly problematic. Under the definitions of transnational corporations and other business enterprises contained in the current treaty proposal, the international brands and retailers that sourced apparel products from local suppliers in Rana Plaza would have been covered by the treaty, but not the factories in which some 1,200 workers were killed. NGOs have rightly expressed their dismay at this omission because victims don’t care whether they are abused by transnational or local firms. And they have pointed out that excluding national companies represents a regression from the Guiding Principles, which do encompass all business enterprises.

An exclusive focus on transnational corporations also poses deeper conceptual and legal challenges—again, because the world is changing profoundly. Transnational corporations are no longer the entities they once were: vertically integrated, multidivisional organizations structured in the form of a pyramid. The 21st century transnational corporation is a far more complex economic entity. In addition to its traditional relationships with subsidiaries, joint ventures are commonplace, many with state-owned or other national companies. But the biggest change has occurred through non-equity relationships. Here what you see today is the corporation as a bundle of contracts: contract manufacturing, contract farming, contracted service provision, franchising and licensing, to name but the more prevalent networked forms. This so intermingles transnational and national firms that even drawing legal boundaries around a transnational corporation can be exceedingly difficult, let alone imposing liability only on the foreign entity in any but the most obvious situations. Therefore, a treaty should encompass all business enterprises.

My final point concerns the scale of any future treaty. There is a certain intuitive and even moral appeal to the idea that there ought to be one law, one international law, governing the conduct of all business enterprises everywhere under a common set of standards protecting all human rights. But such a treaty would have to be pitched at so high a level of abstraction that it would be of little if any use to real people in real places. The crux of the problem is this: while business and human rights may be a single label that we attach to a range of activities, it is so vast, diverse, and conflicted an issue area that it does not lend itself to governance through a single set of comprehensive and actionable treaty obligations. That is why the principled pragmatism on which the Guiding Principles rest recommends international legal instruments that are carefully crafted precision tools.

In addition, it is doubtful that any overarching treaty in practice would extend protection of all internationally recognized human rights against corporate abuse, as the Guiding Principles do. This is so even if the treaty were to encompass all business enterprises, which the proposed treaty does not. The reason simply is that not all states that can make the biggest difference have signed on to the full range of human right standards.Those who haven’t are unlikely to impose them on their corporations as a matter of hard law. That not only results in an ineffective treaty, of which there are many. It also risks undermining the broad state support achieved by the Guiding Principles for addressing all internationally recognized rights at the level of policy and practice.

How, then, do we move ahead? My answer is simple: the same way we’ve come this far, step by step. First, we need to redouble efforts to implement and build on the Guiding Principles—or to start the process where it has not yet begun. The Guiding Principles work, as we have seen. But they don’t magically implement themselves. And as our Chairman noted in his opening remarks yesterday, we need to measure and report on implementation.

Second, we need to identify specific gaps that the Guiding Principles and other such means cannot reach, and then assess options for narrowing those gaps based on evidence about which are likely to be the most effective and achievable where it matters most: in the daily lives of people.

As many of you know, I have suggested as an initial step consideration of a legal instrument addressing corporate involvement in the category of “gross” human rights violations. I did so because of the severity of the abuses involved; because the underlying prohibitions already enjoy widespread consensus among states yet there remains considerable confusion about how they should be implemented in practice when it comes to legal persons; and because the knock-on effects for other aspects of the business and human rights agenda would be considerable.

In closing, I want to express my deepest appreciation to all of you—for your commitment and for the important work you do. At the end of the day, whatever differences may exist, everyone at this Forum is part of a movement. Achieving further progress is within our reach. We must and we can succeed—for the sake of individuals and communities everywhere, and for the sake of our precarious system of global governance on which people and planet depend.

Symposium: Business and Human Rights – Next Steps

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

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

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

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

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

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

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

An Important New Orthodoxy on Complicity in the ICC Statute?

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


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

The ramifications of this new interpretation are significant.

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

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

To recall, the English version of Article 25(3)(c) states that:

“In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:… (c) For the “purpose” of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And yet, there is one provision within the MPC definition that has not featured within these debates, despite the fact that it obviously favored the New Interpretation of the ICC Statute. As I set out in my original post, the very next provision in the MPC after the “purpose” reference on aiding and abetting reads that “[w]hen causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” (see page 22 of the article). For several reasons, the import of this second missing provision is hard to overstate in the transition from the Old to the New Interpretation of complicity in the ICC Statute.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the other hand, Isreali criminal law clearly adopts the New Interpretation. As I point out in my earlier post, Israel is also a “purpose” jurisdiction, but the leading case stipulates that “where the aider only foresees the possibility of the commission of the principal offense, the aider may be convicted if it is his or her desire that should the offense actually be committed, his or her act will facilitate its commission.” Itzhak Kugler, Israel, in The Handbook of Comparative Criminal Law 352, 370 (Kevin Jon Heller & Markus Dubber eds.) (citing the Israeli Supreme Court case of CA. 320/99 Plonit v. State of Israel 55(3) PD 22 [1999]. In commenting on the decision, Kugler explains that “[t]he requirement of the code that the actor act with the “purpose” of facilitating the crime relates only to the contribution of the aider; that is, it is required that he or she want his or her act to facilitate the commission of the offense… Thus, in the case where the aider was almost certain that his or her act would facilitate the commission of an offense, the aider may be convicted in spite of the fact that he or she did not desire to facilitate the commission of the offense.”

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

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

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

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

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

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

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

10. The Old Interpretation is not theoretically defensible

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

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

According to Noto:

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

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

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

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

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

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

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

11. The New Interpretation is theoretically defensible

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

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

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

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

12. Points of residual disagreement, areas for further research

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

 

 

 

 

“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.

How to Interpret Complicity in the ICC Statute

Thomas Weigend is a Professor of International, Comparative and German Criminal Law at the University of Cologne. At the risk of embarrassing him slightly, this is among the most insightful commentaries on complicity I have read in over four years of researching the topic.


My comment on the enigmatic words “for the purpose of facilitating the commission of such a crime” in Article 25 (3) (c) of the ICC Statute comes in two parts: First, is it good criminal policy for international criminal law (ICL) to require a higher degree of mens rea for convicting an assistant than for convicting a perpetrator of the same crime? Second, does Article 25 (3) (c) demand such a distinction by using the words “for the purpose”?

(1) As a general principle, it makes little sense to require a “thick” intention – however it is defined – for holding an assistant criminally responsible where a lesser degree of mens rea is sufficient for convicting the perpetrator of the same crime. The definition and sentence for any particular crime are devised with the perpetrator in mind. The allocation of responsibility to other persons, who have not “controlled” the commission of the offense or are otherwise further removed from the center of the criminal activity, is in some way accessorial to the perpetrator’s act. As the moon receives its light from the sun, an accomplice’s responsibility depends on an extension from the “natural”, primary responsibility of the perpetrator. Art. 25 (3) (c) clearly is based on this concept since this provision makes the commission or attempted commission of a crime by a perpetrator a prerequisite for convicting an assistant.  If that is so, it is counter-intuitive – and would require special justification – to add a specific mental requirement for convicting an assistant where the perpetrator will be held responsible on a less demanding standard.

This consideration is independent of whether one sees in Article 25 (3) (a) through (d) a “hierarchy” of modes of responsibility. Even if there is no such gradated system inherent in Art. 25 (3) and assisting is (or can be) of equal seriousness as perpetration, there is no good reason why an especially high degree of mens rea should need to be proved in order to convict an assistant. Some writers have proposed a “balancing” theory to justify this result: since the assistant does not singlehandedly complete the actus reus of the offense, they claim, her liability can be equal to that of the perpetrator only if the assistant’s mens rea is of a higher degree. But 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.

In ICL especially there is no good reason to require an “extra” degree of mens rea for convicting assistants. It makes little sense to exempt from responsibility those who know very well that the person whom they assist will make use of their contribution for committing a core crime but who have no direct personal interest in the perpetration of that crime. The commission of ICL crimes – contrary to many “ordinary” offenses – typically  requires the cooperation of many persons, who may all have different motives and goals. If ICL wishes to prevent such crimes it should not limit criminal liability to those who pursue a limited “purpose” and thus refrain from punishing all persons who consciously join their efforts to commit the offense.

(2) Does the wording of Art. 25 (3) (c) of the ICC Statute compel a different result? I don’t think so.

(a) Let us start with semantics. The “purpose” a person pursues describes his objective but not his motive. Therefore, an assistant under Art. 25 (3) (c) does not have to lend help because he wishes to bring about the offense. Nor does the commission of the offense have to be his sole purpose: Even if his main goal is to make money by selling arms, he may well act with the (secondary) purpose of facilitating the crime committed with those very weapons.

I also doubt that “purpose” necessarily coincides with a desire or with positive feelings about the (known) objective of one’s acts. For example, if a robber threatens to kill me unless I give him my wallet, and I comply with his demand, one can certainly say that I act with the purpose of satisfying his demand (so that he leaves me alone). But I certainly do not desire or even approve of his making off with my wallet. In sum, “purpose” describes one of the objectives of one’s act but does not say much about one’s attitude (of approval or disapproval) about that objective.

(b) This consideration leads to the general question about the role of “volition” in intent (or purpose). Some of the contributors to this blog seem to assume that – as James Stewart has put it – “the reference to purpose requires a volitional commitment to the consummated offense”. But what is the exact meaning of “volitional”, and why should it matter? If D shoots at V from close range, killing him, can D deny that he “willed” to kill V? Even if intention contains a “volitional” element, the actor’s volition will necessarily follow from his knowledge of the result that he is going to bring about. D may claim that he really did not like killing V (as in the robbery example above), and that he is sorry that he did – but still he “willed” V’s death, otherwise he would not have shot at him from close range. Contrary to  Flavio Noto, I would not say that it is a “fiction” that “certain knowledge about an undesired but anticipated side-effect is tantamount to a volitional commitment to that side-effect”. If the assailant in Flavio Noto’s airplane example knows that his rocket will kill all passengers, then it is his will to kill them all – although his motive for firing the rocket may have been his hate of one particular passenger. As in most other cases, the actor’s motive is irrelevant for his liability. His will flows from his act – if he had not willed the foreseen result he would not have acted.

This, by the way, is the hidden wisdom in the convoluted definition of intent and knowledge in Art. 30 of the ICC Statute: Normally, mens rea requires no more than a person’s awareness that a result will occur in the ordinary course of events. A further “volitional” element is necessary only where an offense definition requires that the perpetrator “intend” results beyond those brought about by the actus reus. If larceny is defined as taking someone else’s chattel with the intent of possessing it (as is the definition in § 242 German Penal Code), then it must be proved that the defendant “wished” to keep the chattel for himself – because that future development is not part of the actus reus of larceny. But assisting as defined in Art. 25 (3) (c) does not have this structure. The purpose of the assistant relates exactly to what she does: facilitate someone else’s (criminal) conduct. Therefore, the assistant’s volition is a necessary and undeniable consequence of her cognition.

(c) After having clarified what “purpose” may mean, we can turn to the question to what the assistant’s “purpose” must relate under Art. 25 (3) (c). 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).

(d) In what I said so far, I assumed as true the widely shared assumption that the words “for the purpose” describe a special mental element of assisting under Art. 25 (3) (c). But there is a plausible alternative reading of these words, which has been spelled out by Antje Heyer in her excellent and extensive analysis of liability for aiding and abetting in ICL (published in 2013 in German under the title Grund und Grenze der Beihilfestrafbarkeit im Völkerstrafrecht, pp. 500-501; for a similar interpretation, see Katherine Gallagher, ‘Civil Litigation and Transnational Business’, 8 JICJ 745 at 765 (2008)). “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 as to be of use to the perpetrator. Under this interpretation, conduct that is part of a person’s normal business would not qualify as assistance, because that conduct would not have the objective purpose of facilitating someone’s crime. If, for example, an arms trader sells weapons to a dictator at their regular price and under regular conditions, he would not be an assistant to crimes against humanity even if he is aware that such crimes will be committed using these weapons. But if the trader sells the weapons at a higher price because of an existing embargo, or if he sells weapons that have been specifically designed for killing civilians, he would be liable because this particular deal has been accommodated to serve the specific “purpose” of committing the crime. Under that interpretation, the regular mens rea requirements (as described in Art. 30) would apply – the arms dealer would only have to be aware of the specific elements that give the arms deal its “purpose”.