Rishi Sehgal and Nikunj Baheti, Dr. Ram Manohar Lohiya National Law University, Lucknow, India.
The International Criminal Court (“Court”) on 19th September 2019, opened the confirmation of charges hearing for militia leader Patrice-Edouard Ngaïssona, allegedly responsible for supporting multiple counts of Crimes Against Humanity and War Crimes against civilians belonging to the Muslim community in the Central African Republic (“CAR”). One of the key aspects of this case is that the warrant issued by the Pre-Trial Chamber has charged Ngaïssona as an aider and abettor of the above-mentioned crimes in several locations of CAR. This gives the Court the opportunity to examine Article 25(3)(c) of the Rome Statute (“Statute”) especially when it comes to the mental elements.
Article 25(3)(c) provides for the accessorial mode of liability wherein a person is held individually criminally responsible when “for the purpose of facilitating the commission of the crime, aids, abets or otherwise assists in its commission or its attempted commission.” The use of the expression “for the purpose of facilitating[SM1] ” has generated several debates amongst the international criminal law community regarding the appropriate mens rea standard for accessorial liability. Many jurists[SM2] such as Dr. Sarah Finnin have analysed extensively whether the provision is built upon the longstanding precedents of the ad-hoc and hybrid tribunals or that a new standard has been adopted by the Statute. While the Trial Chamber decision of Bemba did pursue to bring some clarity, however, due to the lack of discussion by the Court in further cases the debate has yet to reach its conclusion.
Therefore, the authors in this post, analyze the contrasting interpretations of the term ‘purpose’ and assess its practical viability when applied to a hypothetical factual scenario.
Background of Article 25(3)(c)
The negotiating history of Article 25(3)(c) epitomizes a compromise between civil and common law traditions. The delegations from the countries belonging to the two legal systems failed to agree on using either the word “intent” or “knowledge” and hence, had to settle upon an ambiguous ‘purpose’ standard. The purpose standard so agreed upon is largely believed to have been inspired from Section 2.06(3)(a)(ii) of the American Law Institute’s Model Penal Code (“MPC”) according to which an accessory acts “with the purpose of promoting or facilitating the commission of the offense.” Though one may be tempted to infer MPC for guidance, the drafters never intended to use MPC as a tool for understanding this provision.
As far as the jurisprudence of the ad-hoc and hybrid tribunals is concerned, the approach they adopted, reflected the customary international law standard of knowledge which only requires the accused to be “aware of his assistance towards the commission of the crime.” However, the lead negotiator of the United States in the Rome Conference, David Scheffer had pointed out that even though some provisions of the Statute end up reflecting customary international law, Article 25(3)(c) is certainly not one of them. This has also been confirmed by Article 10 of the Rome Statute which provides that its provisions should not “be interpreted as limiting or prejudicing in any way existing or developing rules of international law.”
Interpretation of Purpose Standard
As a result of the lack of lucidity regarding the scope of the ‘purpose’ standard under art. 25(3)(c) two interpretations have emerged: i) Purpose is to be read as requiring only knowledge (“knowledge standard”); ii) Purpose includes both intent and knowledge (“intent standard”).
Scholars such as Cassandra Steer, argue that purpose denotes ‘awareness.’ This implies that irrespective of the motive, if the accessory aids with the knowledge that his assistance would lead to the commission of the crime, that is sufficient to hold him liable. This stance is based on the conjoint reading of the definitions of intent under Article 30(2)(b) and knowledge under Article 30(3) of the Statute. It is believed that since the accessory has the knowledge, his will automatically flows from the act itself and, therefore, the Court will not be burdened to decide upon the extra or the added intent element. Moreover, such an interpretation of purpose would also eliminate any kind of subjectivity in the cases before the Court.
However, the major drawback with such an understanding of purpose is that it would bring under its net a large number of people who though might have full knowledge of the core crime but have either no direct personal interest or are carrying out their legitimate daily business activities. For example, an arms dealer who supplies weapons to a war-torn country with the knowledge that they may be used to facilitate some crime. While many would consider that it will suit the Court in bringing within its fold the businessmen who give their assistance for financial reasons, it would also include those who despite having the knowledge do not possess the guilty mind.
Taking another example, an international law scholar assists the President of country A by providing a legal opinion regarding the validity of an airstrike on country B, whose government is committing serious human rights violations against its own population. Considering the above-mentioned interpretation, the scholar would be held liable for aiding the crime of aggression since he had the knowledge that his opinion would lead to the airstrikes thereby ignoring his intention of preventing further harm to the population.
Therefore, some jurists have raised the question regarding the intention of drafters by introducing the word ‘purpose’ under Article 25(3)(c)? According to them, the answer is clearly on the negative side since there would no longer be any difference between the standards adopted by the ad-hoc tribunals and the ICC.
This standard was formulated in the Bemba Trial Chamber judgment which considered ‘purpose’ to be synonymous with intention. The use of the word ‘purpose’ according to the Chamber denotes a higher subjective mental element and mere knowledge or awareness on part of the accessory that his act would facilitate the commission of the crime is insufficient to hold him criminally responsible. Rather, purpose entails that the accessory must have intentionally lent his or her assistance in order to facilitate the principal’s crime. It is irrelevant to show whether the accessory had the intent regarding the result of the principal’s conduct or that the accessory desired that the offense be successfully committed. The important thing is that the accessory must not only have the knowledge that his assistance would lead to a crime (though not necessarily the exact crime) but should also lend the same with the intent to assist the principal.
However, such an interpretation of purpose is problematic for two reasons. Firstly, requiring two intents- one under Article 25(3)(c), and another under Article 30 of the Statute which applies by default is unnecessary as it blurs the distinction between an accessory and principal given the fact that the accessory does not control the commission of the crime like the latter. Moreover, proving two intents would make the task of the Prosecutor more onerous.
Secondly, this additional intent requirement is too restrictive as it would exclude the liability of individuals who assist the principal out of any financial or other vested interest. For example, a weapon manufacturing company supplying arms and ammunition to a country facing a war-like situation at higher costs can escape liability on the ground that the intention behind such supply was to attain financial benefits and not to aid in further destruction to the civilians. Thus, demanding an ‘extra’ degree of mens rea for the prosecution of an accessory as compared to the principal would make little sense.
The ‘purpose’ standard integrated by the drafters under Article 25(3)(c) continues to remain a point of contention even after twenty years of adoption of the Statute. This makes it necessary for the Court to have an elaborate discussion upon the mens rea requirement of accessorial liability under article 25(3)(c). If the Court in the confirmation hearing accepts the knowledge standard, it would signify a retreat to the loose standards of the ad-hoc and hybrid tribunals which according to Kai Ambos, should not be the case as the purpose standard under the Statute represents a complete shift from the jurisprudence of the ad-hoc and hybrid tribunals. But, does this mean that the Court accepts the intent standard? While this standard may conform with the objective of the Court of not prosecuting the entire range of individuals who make a contribution to the crime but adoption of this standard would restrict the type of individuals (e.g.: businessmen, financial leaders) that can be brought before the Court.
Hence, the authors are of the hope that the Court will use this case to establish its stance regarding the ongoing debate around the interpretation of the purpose standard.
Important post. But it is really unacceptable, to require such mental element of wishful subjective intent, as acting for the ” purpose ” discussed here. This is because, the whole idea of being criminally liable, is made by the choice of one person or perpetrator, to be able to avoid the conduct, and not to put himself knowingly in one situation, that shall lead him finally, to criminal conduct. As such, what is needed, is awareness that such conduct shall contribute in our case, to the criminal conduct. Moreover, if he had suspicion even, and avoided inquiry into the nature of the acts about to be committed, he should be also liable.The ICC, holds to account those who are the most responsible ( anyway so ) so, not to spread liability on too many persons involved, is anyway irrelevant for the court. For the latter, seeks the ” head of the snack ” typically, and anyway.
Otherwise, wishful subjective thinking,shall negate personal criminal liability. That is unacceptable. Suppose:
That one person, would beat another one, with let’s say, a massive baton on his head. Just to teach him a lesson. With clear passive or negative intent, not to kill him, but to cause him serious pain. Would it help ? of course not ! since a reasonable person, must assume, that in such circumstances, a person may get killed by such severe strikes in his head. Wishful, subjective, personal intent, is not the test, the test is:
The reasonable person, and reasonable expectation and probability. That’s what the statute provides also in article 30, I quote:
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) 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.
End of quotation:
So, we read clearly : that what counts for the meaning of intent, is : to engage ( factually) and consequences resulting out of it, and above all:
” will occur in the ordinary course of events “. Meaning, reasonable person, must assume, that what he does actually, shall result in criminal consequences, notwithstanding, the purpose or subjective intent. This is objective test, can’t be subjective ( basically ). You beat severely a person on his head, he may die. Doesn’t matter, your subjective intent, just to cause him pain, and no more than that of course.
Thank you for sharing your views on the topic El roam. I think this issue is a double-edged sword. The requirement of added intent under ‘purpose’ can certainly be said to be unnecessary for the reasons stated above. However, the experience of the ad-hoc tribunals with ‘awareness’ has also not resulted in the desired outcomes in certain cases and given the objective of the ICC to hold accountable only those who are most responsible, its quite feasible for the ICC to move away from the standards of the ad-hoc tribunals. Therefore it becomes crucial to see what the ICC does as choosing either of the interpretations is attached with several consequences for the court.