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.
- 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.
- 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:
- 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;
- 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.
- 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 Weigend – Thomas 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 Milaninia – This 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 Haque – Haque’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).
- 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.
- 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.
- 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.
- 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.
- 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 . 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.
- 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.
15 thoughts on “An Important New Orthodoxy on Complicity in the ICC Statute?”
Fascinating stuff, James. I’ll have more to say later. Just a quick point for now: As I read 25(3)(c), it doesn’t provide for attempted complicity (a failed attempt to assist), but rather for complicity in an attempt (successfully assisting a failed attempt to commit a crime). So if I give you a gun to kill A and the gun misfires then we’re both guilty of attempted murder, but if I leave a gun for you hoping that you will use it to kill A and you never receive it (and I don’t assist you in any other way) then I’m not guilty of anything if you try to kill A on your own.
So on my reading the ICC Statute departs from the MPC with respect to attempted complicity.
I want to underscore how the New Orthodoxy departs from the MPC.
According to the New Orthodoxy, “the accomplice must purposefully do that which facilitates the crime.” According to the MPC, the accomplice must purposefully do that which facilitates the crime *with the further purpose that the perpetrator either engage in prohibited conduct or engage in conduct that causes a prohibited result (with the mental state regarding that result required for commission of the offense).*
Similarly, according to the New Orthodoxy, “As for the criminal result *of the facilitation* . . . , the accomplice must have whatever mental element is announced in the crime charged.” In contrast, according to the MPC, as for the criminal result *of the perpetrator’s conduct,* the accomplice must have whatever mental element is announced in the crime charged.
Here are two domestic examples. Under the MPC, A is complicit in a rape (a conduct offense) committed by P only if A aids P with the purpose that P force the victim to have sex (prohibited conduct). In Riley v. State, A was guilty of recklessly causing serious physical injury (a result offense) because A assisted P with the purpose that P fire a gun into a crowd (conduct) and was reckless with respect to the serious physical injuries resulting from that conduct (prohibited result).
Here are two ICL examples. On the MPC approach, A is complicit in P’s commission of genocide by forcibly transferring children of one group to another group (a conduct offense) only if A aids P with the purpose that P forcibly transfer children. In contrast, A is complicit in P’s commission of genocide by causing serious bodily or mental harm to members of a group (a result offense) only if A aids P with the purpose that P engage in the conduct that causes the harm as well as the knowledge that the harm will result from P’s conduct (assuming that knowledge that harm will result is sufficient for commission of the offense).
[Note that if the specific intent requirement of genocide makes these examples problematic then we can substitute a different conduct offense (say the crime against humanity of enslavement) and a different result offense (say the war crime of extensive destruction of property) to illustrate the same points.]
Of course, none of this is to say that we must interpret the ICC Statute along the lines of the MPC. I will try to share some thoughts on that question later.
I have been following your fascinating posts on aiding and abetting on your blog with great interest and enthusiasm,.
I am moderating a panel next weekend on aiding and abetting at the International Bar Association’s War Crimes Conference in The Hague and I plan on referring everyone to your blog. (see attached conference program)
I have two questions about your new interpretation.
Am I correct in thinking that your interpretation of the ICC Statute differs from the ICTY’s interpretation of the elements of aiding and abetting in that you believe the ICC would require an aider and abettor of genocide to share the intent of the perpetrator to destroy the group?
If so, does this mean that someone like General Krstic would be acquitted of genocide at the ICC?
Stewart claims that “Weigend is a powerful and explicit advocate for the New Interpretation I highlight here.” But that is not actually the case. Stewart’s “New Interpretation” of aiding and abetting requires two things: (1) the accomplice’s intentional provision of whatever it is that facilitates the principal perpetrator’s offence; and (2) the accomplice’s knowledge that what he provides will facilitate the principal perpetrator’s offence. That is clear from this comment:
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.
Weigend’s understanding of aiding and abetting is very different. He does not specifically address (1), most likely because no ICL scholar has every questioned the idea that it is not criminal to accidentally aid and abet an international crime. But he does address (2) – and he does not adopt a knowledge-based understanding of facilitation. On the contrary, he explicitly states that the accomplice must intentionally provide whatever it is that facilitates the principal perpetrator’s offence intending what he provides to facilitate the principal perpetrator’s commission of the offence:
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).
As Weigend’s discussion of the arms trader makes clear, he would not accept Stewart’s claim that it is enough for an accomplice to “purposefully suppl[y] 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 accomplice must purposefully supply the weapon to the principal perpetrator for the purpose of facilitating the principal perpetrator’s displacement of civilians. Intending to facilitate and knowing that facilitation will result in the ordinary course of events are not the same thing. Hence Weigend does not endorse the New Interpretation of aiding and abetting
As an aside, I completely agree with Adil Haque when he says this with regard to the two possible interpretations of the relationship between Art. 25(3)(c) and the Model Penal Code:
On either view, an accomplice must act with the purpose of facilitating the perpetrator’s conduct. Neither view supports complicity on the basis of knowingly or recklessly facilitating the perpetrator’s conduct. Whether or not the Rome Statute departs from the MPC with respect to results, it certainly follows the MPC with respect to conduct.
This statement is impossible to reconcile with the New Interpretation. As discussed in my previous comment — but worded slightly differently — the New Interpretation says that it is enough for the accomplice to intentionally provide assistance to the principal perpetrator knowing that in the ordinary course of events his assistance will facilitate the principal perpetrator’s commission of the offence. That is not Haque’s view of what the MPC requires. For him — and for Weigend — the accomplice must intentionally provide assistance to the principal perpetrator intending to facilitate the principal perpetrator’s commission of the conduct element of the offence. As Haque says, “[n]either view supports complicity on the basis of knowingly… facilitating the perpetrator’s conduct.”
It may be worthwhile to summarize my view of aiding and abetting, which parallels Weigend’s and Haque’s. Consider a situation in which a soldier, A, provides a fellow soldier, PP, with the weapon PP uses to execute civilians. PP is charged with the war crime of wilful killing; A is charged with aiding and abetting the war crime of wilful killing. PP’s war crime consists of a conduct element (shooting), a consequence element (causing death), and a circumstance element (the protected status of the victims). Pursuant to Art. 30, therefore, to convict PP the prosecution must prove: (1) that PP intentionally shot the victims — the mens rea that applies to the conduct element; (2) that PP either intended to kill the victims or knew they would die in the ordinary course of events — the mens rea that applies to the consequence element; and (3) that PP was aware that the victims were protected persons — the mens rea that applies to the circumstance element. I think that assessment is uncontroversial.
So what about A? What does the prosecution have to prove to convict him of aiding and abetting the war crime of wilful killing? Four things (putting aside the disputed contribution element of the actus reus): (1) A intentionally provided PP with the gun — the actus reus of facilitation; (2) A intended to facilitate PP shooting the victims — the mens rea that applies to the conduct element of PP’s war crime; (3) A knew that PP would shoot the victims intending to kill them or being aware that they would die in the ordinary course of events — the mens rea that applies to the consequence element of PP’s war crime; and (4) A knew that the victims were protected persons — the mens rea that applies to the consequence element of PP’s war crime.
The key here is (2). Stewart’s New Interpretation of aiding and abetting does not require A to intend to facilitate PP shooting the victims, the conduct element of PP’s war crime; in his view, (2) simply requires A to know that PP will use the gun to shoot the victims in the ordinary course of events. But I do not think that is right — and I do not think that is not either Weigend or Haque is arguing. As I said in a previous comment, intending to facilitate PP’s conduct is not the same as knowing PP will engage in conduct in the ordinary course of events.
Thanks to those who’ve already offered helpful thoughts. I’m currently attempting to entice further reflections from experts who participated in this symposium, to give them an opportunity to clarify or criticize if I’ve misread them. Understandably, this make take some time. Once I have a full set of reactions, I’ll write a consolidated response to everyone. Check back in periodically, or follow me on Twitter @jimgstewart for updates on this discussion. Thanks again to those who have already shared their thoughts. JGS
A heads up and an apology: this is a long response.
I have to admit that the more I read of this debate, the more convinced I am that any lack of clarity continues to be fueled by our differing domestic criminal law backgrounds. One thing I certainly agree with James Stewart on is the problematic use of the word “intent”. I made the mistake of using it in my own contribution to this blog, causing some confusion as to the final stance I take.
The notion of “double intent” exists in most civil law jurisdictions and, from the comparative analyses here, appears to be read into many common law jurisdictions. “Intent” here must be understood in its broadest sense, i.e. there must be more than recklessness on the part of the participant, BOTH with respect to her contribution or assistance to the perpetrator, and with respect to the crime. This reflects the compensatory theory: because the accessory contributes less to the crime, his liability must be based on a more stringent test of willful participation. I agree that this double test should also be applied in ICL and fits the wording of article 25 (3) (c).
Whether this double test can also include other degrees of volition, such as purpose, knowledge, or willful blindness/dolus eventualis (and I still maintain these last two terms are each other’s equivalent, and that dolus eventualis is NOT the equivalent of recklessness) remains an entirely open question. As I mention in my blog contribution, although the MPC makes a clear distinction between these degrees of volition, in many common law jurisdictions there is much discretion left up to a judge as to how to interpret these terms, and many civil law jurisdictions do not make such clinical distinctions at all. Such variations are all considered to be degrees of “intent” in the broader sense; there exists only a clear line between intentional behaviour and reckless behaviour, and whether there is purpose required on the part of the assistant/aider/abettor as opposed to knowledge rarely matters with respect to proving guilt. Where “intent” is required, everything on a sliding scale down to dolus eventualis/wilful blindness suffices. Perhaps it makes a difference with respect to sentencing, but this differs from jurisdiction to jurisdiction.
Whether this double test can be read according to the New Interpretation is also a question I fear is entirely open to discussion. It would seem some common law jurisdictions distinguish between the purpose required with respect to facilitation, and the volition required with respect to the crime committed. For example in Canada the compensatory theory applies and there must be “intent” to facilitate the physical perpetrator, but mere knowledge will suffice of at least the type of crime that is to be committed, though not necessarily the exact crime.
Since civil law jurisdictions vary greatly in language, there can be no literal guidance taken from statutory interpretation, but here are some examples:
In the German Strafgezetsbuch, S. 26 defines “Aanstiftung” as any person who intentionally induces another to intentionally commit an unlawful act. S. 27 defines “Beihilfe” as any person who intentionally assists another in the intentional commission of an unlawful act. So the double “intent” test is there, however as I mentioned, the interpretation of the word intent remains unclear.
In the Dutch Wetboek van Strafrecht, art 47 defines “uitlokking” as intentional instigation of the crime, and art 48 defines the “medeplichtige” as (1) anyone who intentionally assists in the commission of the crime, or (2) intentionally provides opportunities, means or information towards the commission of the crime. Although the statute does not explicitly mention a double “intent” requirement, it is strictly understood to apply to all forms of participation. But it is often interpreted to mean that there must be “intent” to assist the physical perpetrator, and that mere knowledge will suffice of at least the type of crime that is to be committed, or that is likely to occur in the ordinary course of events, but not necessarily the exact crime.
So where does this leave us? The double “intent” test should apply, and an interpretation in line with the New Interpretation would be consistent with many domestic approaches. However whether it is the “right” one, or an emerging orthodoxy, is unclear. If I use Kevin Jon Heller’s useful example of the soldier A who provides a weapon to PP, I would in fact say that what needs to be proven is that (1) A intentionally provided PP with the gun — the actus reus of facilitation, which avoids guilt by association; (2) with respect to the mens rea that applies to the conduct element of PP’s war crime, that A intended to facilitate PP shooting the victims OR KNEW THERE WAS A LIKELIHOOD THAT PP WOULD SHOOT THE VICTIMS AND KNOWING THIS STILL PROVIDED PP WITH THE GUN— a broad interpretation of “purpose” as including all forms of “intent”, but excluding guilt by association, by excluding recklessness or negligence. This is the “purpose” (pun intended) of the double-intent requirement.
A short note: I agree entirely with Haque’s first post, that attempting to assist, and assisting an attempted crime are not the same thing. The former is only criminalised in some jurisdictions, the latter in almost all. But the difference between them, and between the MPC and the ICC Statute in this respect, means there is no reason to argue that the MPC is the main model for the Rome Statute.
I am very pleased that the ‘Old Interpretation’ of complicity under the Rome Statute finally appears to have been challenged by a larger group of very distinguished scholars. As noted so very politely by Professor Weigend, I have strongly argued to undermine the common interpretation of the ‘purpose element’ both in my doctoral thesis as well as in a special issue of HR&ILD (http://www.hrild.org/table_of_content.aspx?sy=2012&pn=1, see in particular pp. 49 ss.).
Just one note about ‘purpose’ as a volitional element in intent in general: When deconstructing intent from a social sciences perspective, we may note that volitional elements of a perpetrator’s intent may arguably only be estalished by testimony about such volition, which, effectively, interfuses the question of volition with that of motive. Accordingly, critics of the ‘purpose’ standard often make the policy argument that motive should not decide about the criminal nature of a conduct and that the ‘purpose’ standard should be abandoned. Or, judges might infer purpose from the cicrumstances of the crime, thereby avoiding the policy critique; on the other hand, such practical application is prone to undermine standards of proof and, ultimately, the presumption of innocene.
When following up on the social sciences approach, we may further come to the conclusion that any deconstruction of intent in fact reveals a number of observations and perceptions: We observe that the perpetrator had access to a certain number of facts which we perceive should have lead him to conclude that his conduct might (certainly or probably) do harm.
Let us further venture to deconstruct ‘acting for the purpose of facilitating’ a crime in this way: We observe that the accomplice had access to a certain numer of facts which we perceive should have lead her to conclude that her conduct appears to be designed to facilitate the doing of harm of another.
If this social interaction of observing and perceiving behaviour is what – from a sociological perspective – criminalises conduct, why should legal doctrine not assimilate such findings? And more importantly: Could legal doctrine not profit from them, in terms of both policy and theory?
Interpreting the ‘purpose of facilitating’ a crime in an objective way is, as pointed out by Professor Stewart, reconcilable with the wording of the Statute. It is theoretically sound as it presupposes a stronger objective connection between the accomplice’s conduct and the criminal harm, thereby addressing the ‘compensation argument’. It further neatly distinguishes intent from motive. Moreover, from a policy view point, it relieves the judge of inferring intent in questionable ways.
Antje, thanks so much for these fascinating thoughts, which along with Professor Weigend’s post, challenge the received wisdom on aiding and abetting in such a conceptually insightful way. I’m very pleased to host you in this debate. James
The various posts in and on this symposium show that what James Stewart calls the old interpretation has given way to a fresh discussion on the required state of mind of an aider and abettor. I would hesitate to conclude that a new orthodoxy has crystallised but certainly acknowledge that another line of argument has emerged as to what purposive facilitation requires on the part of the aider and abettor’s mens rea. That line of argument is that not even the wording of Article 25(3)(c) Rome Statute connotes a volitional commitment to the result of the crime but merely towards the act of facilitation.
The difficulty with this reasoning is that it might not satisfy those scholars who argue that (at least the English) wording of Article 25(3)(c) indicates that aiders and abettors need not only know and accept but desire that their supportive act facilitates the result of the crime. On that “layer” of the whole discussion, the symposium has gathered a multitude of normative and doctrinal considerations as to the required state of mind. In this regard, I would like to comment on two points:
First, it is trite learning that motive must be firmly kept apart from intent. Without any doubt, the conceptual difference was and is known not only to the US Supreme Court holding that secondary liability should not depend on whether the accomplice “participates with a happy heart or a sense of foreboding” (quote by James Stewart) but also to those commentators who use similar wording to counter a strict purpose requirement on policy grounds. However, what these critics correctly identify is that the strictest form of mens rea (whether called purpose, dolus directus in the 1st degree or Absicht) coincides with motive. Other motives – such as financial gain – may concur an need not be taken into account except perhaps for sentencing purposes; but in theory and practice I fail to see an abstract difference between the aider and abettor’s purposive state of mind towards the result of the crime – if that is what is required – and his motivation to further it.
Second, I question whether it is correct to say that aiders and abettors must possess the mens rea required for the principal’s crime. I argue that they need not and fail to understand why the Statute should prescribe so. Participants to this symposium probably all agree that with respect to the act of facilitation the aider and abettor must act – to use untechnical terms – deliberately as opposed to accidentally. What is contested is the required state of mind towards the result of the crime. The latter necessarily includes a certain – equally contested – degree of knowledge about the principal’s mens rea. However, it remains unclear to me why the Statute further requires that the aider and abettor act with the mens rea required for the principal’s crime; after all, crimes and modes of liability must remain separated. I assume that my domestic frame of mind – as correctly identified by Cassandra Steer as the common culprit – overly complicates matters here. In any event, James Stewart is right to highlight this subject matter for further discussion.
The Dogmatik of Article 25 (3) (c) appears to be more complicated than I had thought. There seems to be agreement, among the adherents of the new and the old orthodoxies, that the assistant (1) needs to act with the purpose of lending help, and that he (2) need not act with the purpose of bringing about a certain result, for example, the death of the perpetrator’s victims. With regard to the latter, the normal rule of Article 30 applies. But Kevin Jon Heller has pinpointed a question which I tried (but did not really manage) to gloss over in my first contribution: Does the assistant’s “purpose” have to extend to the perpetrator’s conduct? In my first contribution, I had written: “(…) 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’.” This analysis might be correct if Article 25 (3) (c) of the Statute said something like: “For the purpose of facilitating an act that he or she knows is an offense…”; and it is in fact analytically possible to distinguish the mental state with regard to real life events from the mental state regarding the criminal quality of these events. But the Statute (following the example of Section 2.06 (3) (a) Model Penal Code) uses the words “For the purpose of facilitating the commission of such a crime …”. This wording probably makes it impossible to separate the empirical act (shooting at persons) from its criminal nature (killing civilians). An assistant who provides weapons intending them to be used in legal warfare but knowing that they may be used for committing crimes against humanity “in the ordinary course of events” therefore does not act with the purpose of “facilitating such a crime” (i.e., a crime against humanity). With this consideration, I agree with Kevin Jon Heller’s analysis of the matter.
I would also like to re-state my general agreement with Antje Heyer’s sophisticated attempt at ‘objectifying’ the concept of “purpose”. It is indeed impossible to dissect a defendant’s mind, long after the event, as to whether he ‘intended’ to lend assistance to a crime or merely ‘knew’ that his act would help the perpetrator commit the criminal act. A finding of “purpose” should therefore have to be based on the objective quality of the assistant’s acts: If an arms dealer, for example, sells guns to a dictator, knowing that they are very likely to be used for the commission of crimes against humanity, then he acts with knowledge; a finding of “purpose” would, in addition, require evidence that the assistant did something to specifically promote the criminal aspect of the perpetrator’s act, for example, mislabel the guns in order to get them into the country in violation of an international embargo. In that regard, my analysis differs from Antje Heyer’s. She writes: “Let us further venture to deconstruct ‘acting for the purpose of facilitating’ a crime in this way: We observe that the accomplice had access to a certain number of facts which we perceive should have led her to conclude that her conduct appears to be designed to facilitate the doing of harm of another.” I think that mere “access to a certain number of facts” is insufficient to prove “purpose”; this would include cases of wilful blindness or even of mere negligence.
Let me add a footnote on Cassandra Steer’s interesting comparative observations. It is true that in German as well as Dutch criminal law there is a requirement that the assistant act with “double intent”, that is, his intent must extend to the facilitation as well as to the perpetrator’s commission of the act. But in both legal systems “intent” includes dolus eventualis; it is therefore sufficient that the assistant (a) realizes and accepts the risk that the perpetrator commit a (loosely defined) criminal act of some type, and (b) realizes and accepts the risk that the assistant’s act contributes to the commission of that act. In that regard, there is no “purpose” requirement whatsoever in these legal systems.
My kind thanks to all the commentators who have shared their thoughts here. It’s a rich discussion that I think has significantly advanced understandings of the topic. I will make my long-overdue reactions short, partly as an apology for this very long blog, but also because I will publish an Article called The Accomplice Liability of Arms Vendors: A Conceptual Defense in the coming months, where I address may of these questions in far greater depth than I can here.
Many of the insightful remarks above contest what I’ve called the New Interpretation, but in reality, they are really taking issue with one aspect of what remains a very significant shift in thinking about accomplice liability under the Rome Statute. Therefore, to begin, I wanted to highlight how much of my original blog remains intact even before we come to these criticisms.
Although I am reluctant to speak for others a second time around, I take it that the commentators to this debate agree that:
1. The Old Interpretation was wrong;
2. There is more than one mental element for aiding and abetting in the Rome Statute;
3. The reference to “purpose” in Article 35(3)(c) only goes to conduct; and
4. Article 30 of the ICC Statute defines the accomplices mental element for criminal results
Before moving on the discuss areas of residual dispute that emerged in this discussion, I want to reiterate that 1 through 4 above are major shifts in the way so many commentators and courts have interpreted this language previously. In other words, no matter how we resolve our remaining differences of opinion, this dialogue has broken important new ground in making way for a new interpretation.
This brings us to points of ongoing disagreement that Heller, Weigend and Heyer helpfully pinpoint. I limit myself to addressing just two particularly important ones here, although there may be one or two more that warrant including in the list I set out under the conclusion of my blog. Below, I address these two points of residual agreement and provide very short reactions:
1. I think conduct goes to the accomplice’s conduct, not the perpetrator’s. I take most of the critics here as arguing that the “purpose” standard goes to the perpetrator’s conduct. I view it as going to the accomplice’s conduct. I take this position for a number of reasons, although I accept that I move between doctrine and theory fairly freely here because, in my mind, the ICC Statute itself is of very limited help in answering the question. My reasons are these:
a. I do not think the MPC is much clearer on this point. From US literature on the topic, various experts meetings with leading American theorists, and plenty of reaction to my draft paper at workshops in the US, many think purpose attaches to the perpetrator’s conduct but others disagree. In short, I do not think there is a single monolithic US position on the issue (although Haque is in good company having made this objection to me and a passage from the MPC commentaries supports his position);
b. It would be strange for this new standard of complicity to have dynamism in the mental element for result crimes, but a static mental element for conduct crimes. Part of the reason why almost everyone here has rejected a strong notion of purpose is that it leads to serious under-punishment when the mental element for perpetration is less than purpose (i.e. almost always). Attaching the “purpose” element to the perpetrator’s conduct leaves precisely this problem intact for conduct type crimes, which I think is not only confusing but indefensible;
c. I have yet to see a reasoned defense of the idea that the first mental element (purpose) is normatively important in the double intent scheme. As I have argued elsewhere, I believe that the accomplice should have whatever mental elements are required for perpetration and nothing more in the subjective realm. Without a compelling justification why “purpose” should go to the perpetrator’s conduct, thereby bringing the concept half way back to the Old Interpretation so many people disagree with, I am inclined to view it as going to the accomplice’s own conduct;
d. Relatedly, I believe that the accomplice’s liability should be constructed autonomously from the perpetrators wherever possible. There is much to say for and against the (partial) derivative structure of accomplice liability, but mostly, I think it creates more problems than it helps, especially in international criminal law. Interpreting “purpose” as going to the accomplice’s mental element achieves this conceptual independence. Approaching it differently would require a special justification, which I have never seen.
2. I am inclined to disagree with the attempt at objectifying purpose for the following reasons, although I concede that I do not fully understand the argument and therefore need to think about it more:
a. The negotiating history to the ICC Statute and the MPC clearly suggest that purpose is a mental element;
b. I have struggled with the objectification of recklessness in some Anglo-American jurisdictions, which requires that someone’s risk-creating conduct goes beyond normal practices within their social context to be blameworthy (reckless for a doctor will be defined based on normal medical expectations). I struggle because I sense that in ICL generally and some of the industries that interest me in particular, the normal is sometimes deeply evil, and I don’t want to deny moral responsibility in these contexts. However I come down on that question, I can’t see a way of justifying objectification for mental elements higher than recklessness. I take it that the objectification of purpose will have this consequence – even when I positively want an atrocity to occur, I will not be responsible for it if my (substantial) assistance is commonplace. I can therefore take advantage of commonplace conduct to carry out my crimes. This seems absurd;
c. Relatedly, I am not sure that there is a particular coherent metric for determining when conduct has a “purpose” that is objectively destined for facilitating crime. In fact, I struggle to see how anything is objectively destined to facilitate crime. Following the famous American dissent in the ICJ’s nuclear weapons case, nuclear weapons do not categorically violate IHL, human rights or ICL because you could detonate low yield weapons at sea or in a desert. Therefore, supplying about the most criminogenic thing imaginable to a terrorist does not objectively establish a “purpose” or any sort. It is exceptionally risky, but that is a separate inquiry.
There is far more to be said, but I will constrain myself now as compensation for my overly-long blog. My thanks again to everyone for participating in these discussions. I have learned a great deal from these interchanges.
Comments are closed.