Incorrect or Inappropriate: The ICC’s “Purpose” Standard of Complicity

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

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

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

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

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

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

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

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

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

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

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

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

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