The U.S. Model Penal Code’s Significance for Complicity in the ICC Statute: An American View

Adil Ahmad Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers School of Law, Newark

I’ve been enjoying the discussion of complicity on this blog, but as a scholar of both American and International Criminal Law, I confess that I’m slightly confused by the discussion of the U.S. Model Penal Code (MPC)’s significance for aiding and abetting in the ICC Statute. I’m grateful to James Stewart for offering me the chance to comment on these three authors’ arguments in this respect.

I see two plausible approaches. The first is that the drafters of the Rome Statute considered the MPC, both 2.06(3) and 2.06(4), and deliberately decided to depart from it and require purpose with respect to all components of “a crime” (conduct, result, circumstance). If the drafters wanted to incorporate the 2.06(3)-2.06(4) framework then they would have done so. Since they did not, we should presume that they had their reasons and intended something different.

The second is that the drafters intended to track the MPC. According to 2.06(3), an accomplice to a conduct crime aids with the purpose of facilitating the perpetrator’s conduct. According to 2.06(4), an accomplice to a result crime is, first, “an accomplice in the conduct causing [the prohibited] result” who, second, “acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” At 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).

This is pretty clear from the MPC Commentary: “[2.06(4)]deals with a special case that arises when an actor is an accomplice in conduct within the meaning of [§ 2.06(3)], and when a criminal result—anticipated or unanticipated—flows from that conduct.” “The most common situation in which Subsection (4) will become relevant is where unanticipated results occur from conduct for which the actor is responsible under Subsection (3). His liability for unanticipated occurrences rests upon two factors: his complicity in the conduct that caused the result, and his culpability towards the result to the degree required by the law, that makes the result criminal.”

A good illustration is Riley v. State, Court of Appeals of Alaska, 2002. 60 P.3d 204: P fires into a crowd, recklessly injuring two people. A assisted P with the purpose that P engage in certain conduct (firing into the crowd), and was reckless with respect to whether P’s conduct would cause injury. P and A are both guilty of first-degree assault (recklessly causing serious physical injury by means of a dangerous instrument). Interestingly, this case reads 2.06(4) into a statute that, like the Rome Statute, on its face tracks only 2.06(3).

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.

Why require that an accomplice aid with the purpose of facilitating the perpetrator’s conduct? I think about it in this way: to perpetrate a crime, one must not only posses the mental states explicitly required by the offense definition but also perform a voluntary act, which in turn requires an intent to perform the bodily movements that constitute the prohibited conduct or cause the prohibited results. It follows that, to be complicit in a crime, one must not only posses the mental states required by the offense definition but also posses the intention that the perpetrator perform the relevant voluntary act. Any lesser standard would create a gap between the perpetrator’s responsibility for his/her own conduct and the accomplice’s responsibility for the perpetrator’s conduct.