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”.