II. Aiding and Abetting history

In order to understand the issues that would arise when attempting to convict certain individuals for aiding and abetting a crime of aggression, we must first examine the history in convicting individuals for aiding and abetting in other international criminal contexts. Because the ICC has yet to decide many of the considerations behind aiding and abetting, looking at how other courts treat it may help predict how the ICC will act if these issues arise.

A. The International Tribunals

The ICTY (and the ICTR, which has identical language in its provisions) first dealt with the concept of aiding and abetting. Its own statute’s Article 7(1) states:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.4

The ICTY has taken this standard and compared it to international customary law in order to decide on both the mens rea and the actus reus of aiding and abetting in this context. The ICTY looks at aiding and abetting as accessorial liability, which means there must be a principal perpetrator who carries out the crime and has the sufficient actus reus and mens rea.5

The actus reus of aiding and abetting was established throughout case law during the time of the ICTY. The ICTY initially fleshed out the actus reus requirements in its Furundžija Trial Judgement and continued to apply it throughout future cases.6 The main tenet of the actus reus is drawn from international law and states that aiding and abetting can consist of practical assistance, encouragement, or moral support to the principal provided that there is substantial effect on the commission of the crime,7 although the assistance does not need to be criminal itself.8 The accused can aid or abet through active conduct or through omission, as seen in the Blaškić appeal, as long as the substantial effect still occurs.9 The aider and abettor does not need to be present at the crime.10 To find proof of substantial effect, the court can look at the cumulative effect of the acts,11 but does not need to find proof of but-for causation between the aider and abettor and the commission of the crime.12 This assistance can occur before, during, or even after the crime was committed.13 The ICTY is still at odds over whether or not the contribution needs to be “specifically directed” to the commission of the crime.14

The ICTY has found that for the mens rea requirement to be satisfied, the aider and abettor must know that his conduct will assist the commission of the specific crime and is also aware of the essential elements of the crime.15 The aider and abettor need not share the same mens rea as the principal or even be sure that the crime will ultimately be committed.16

B. The ICC and Article 25(C)(3)

The Rome Statute lays out its standard for individual criminal responsibility in Article 25. Article 25(C)(3), in particular, lays out the standard for criminal responsibility for aiding and abetting in the commission of a crime.17 It says that a person shall be criminally responsible and liable for punishment if that person:

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.18

The ICC has not established a hardline stance for its aiding and abetting actus reus requirement because it has yet to try any aiding and abetting cases.19 This means that the ICC will have power to make it extremely easy or extremely difficult to attach criminal responsibility to someone who assists the principal in the commission of a crime. There is some guidance, however, as its decision in the Lubanga trial in 2012, although not actually a trial over aiding and abetting, implies that they will also attach a “substantial effect” requirement to the actus reus of aiding and abetting.20 I will argue later in this comment that the ICC should make its definitions as narrow as possible in order to avoid convicting as many people as possible.

The ICC has also not established its hardline stance for the mens rea requirement, but there is language in the statute that shows that this requirement will be higher than what is required in the ICTY.21 However, issues are raised later on in the Rome Statute, when in Article 30, the Rome Statute explicitly states that a person shall be criminally liable if the material elements are committed with intent and knowledge.22 This would suggest a less strict mens rea than is suggested in Article 25(C)(3).

III. Issues with Aiding and Abetting

It can only be assumed that the ICC will begin to hear more cases involving aiding and abetting in the future, especially with the introduction of crimes of aggression, which opens up the floodgates for more and more litigation with its wide range of activities that would be considered illegal. The ICC will, in these scenarios, face issues that would allow it to define how narrowly it would like to define aiding and abetting.

A. Dealing with the Actus Reus and Mens Rea requirement

The ICC’s first major issue will be defining its own standard for the actus reus and mens rea for aiding and abetting. Although it may be difficult to figure out exactly where issues may arise when figuring this out, we can look at the textual language and use hypotheticals to see where there may be difficulty.

As addressed above, the ICC has yet to create any stance towards the actus reus of its crimes. This means that the ICC must address everything that the ICTY has already decided to address above. Similar to the ICTY, there is no textual indication on whether or not there needs to be a “substantial effect” on the commission of the crime,23 so the ICC could decide to include that as an element of its actus reus. It will have to also wrestle with other questions that the ICTY has already dealt with, including whether or not you can aid and abet through omission, if you can aid and abet in an ex post facto manner, and whether or not there the assistance needs to be “specifically directed” towards the commission of the crime.

Although it seems easier for the court to decide on its mens rea requirement due to the text of the statute, there are still arguments to be made that the ICC can go away from pure textual interpretation and institute a similar mens rea to that of the ICTY. Although the Vienna Convention on the Law of Treaties (VCLT) establishes textual interpretation as the main mode of interpreting a treaty, it is not the only means.24 The ICC, for example, could instead decide to look at custom as its means to interpret the treaty, and since other international courts have decided on a lower, knowledge-based mens rea, the ICC could consider that custom and apply it.25 It could also look to other sources of law, including domestic law, and apply those standards, which would vary depending on which state they looked at.26 If they decide to stick to a textualist interpretation, they still can decide on a softer mens rea, since a later article describes the necessary mens rea for any of the crimes mentioned in the Rome Statute as knowledge.27

B. Addressing the “Vertical” and “Horizontal” Reach

Looking at the language of the Kampala Amendments, it is clear that the crime of aggression is a relatively open ended crime and many acts could constitute a violation.28 For example, according to the text, any “bombardment” of a state by another state would constitute a crime of aggression.29 In a possible hypothetical, State A decides to launch missiles and send ground troops into State B, a neighboring state, although State A claims the act is out of self-defense. If the ICC were to accept jurisdiction and listen to a complaint from State B, they could decide that State A’s actions were not out of self-defense. If they decide, at this point, to bring forward indictments on individuals for crimes of aggression, they would have to figure out how far they want the criminal liability to stretch.

In what I would consider “vertical” criminal liability, the court would have to decide if it would want to extend liability “downwards” into lower level officials. For example, in the above scenario, it seems obvious that any general would be individually liable for a crime of aggression, especially with proof that they ordered troops to take illegal actions (assuming they would be liable under Article 25(B)(3) of the Rome Statute).30 However, could the ICC also indict, and convict, common soldiers for a crime of aggression? If they were given orders, it may seem unlikely, but the court could find that they acted with the necessary actus reus and mens rea, especially if those requirements are relatively lax.

One also has to ask how far the court will extend liability “horizontally.” For example, it seems obvious that the leader of State A could be individually liable for sending his troops into State B, even if he claimed it was self-defense. However, what if the leader of State A went through the necessary procedures to actually call it a war, including getting approval from whatever body they needed to domestically, like a Parliament? Could you indict those members for approving a war that was only under the guise of self-defense? If the mens rea requirement is lax, there could be a real argument to be made that these members could be indicted.

It can stretch “horizontally” even further, from state to state. For example, what if State C sold arms and missiles to State A, who has a reputation internationally for using force in illegal ways, and State A used those arms and missiles in attacking State B? Could State A and individuals in its government be indicted for crimes of aggression? If the mens rea requirement is lax enough, there is a possibility that these types of situations could lead to indictments, especially considering that other international courts have already attached liability to the sale of weapons.31

IV. How Should the ICC Approach this Issue?

With a list of roadblocks set forth, the ICC will have to decide how to set its actus reus and mens rea. I argue here that it would be in the ICC’s best interest to avoid many of the above issues and set a strict standard on both the actus reus and the mens rea of aiding and abetting. By setting a strict standard, the ICC can avoid over-extending its jurisdiction for a crime that is already highly politicized and may cause significant backlash against the ICC.

A. Setting a Strict Standard for the Actus Reus and the Mens Rea

Many of the issues of “horizontal” and “vertical” liability that I described above can easily be avoided if the ICC establishes stricter standards for aiding and abetting liability. When deciding the actus reus, the ICC would best be suited to follow the ICTY’s direction and set a “substantial effect” requirement. Although it may be difficult due to a lack of direct textual support, the ICC can look at international custom to show a basis for the “substantial effect” requirement.32 It would also be prudent to set the “specific direction” requirement that the ICTY is still debating, as it would add another level. Once it establishes these two standards, the ICC can either follow the ICTY on the other questions or continue to strengthen the standard. Setting the actus reus in this way does not make it impossible for the ICC to attach liability to people who legitimately aid and abet in the commission of a crime of aggression, but it does ensure that there will not be an overreach by the ICC.

The ICC can truly limit its reach by establishing a “purpose” mens rea, going against the ICTY and creating a stricter necessary element for liability. There should be no issue with the ICC going this route, as there is textual support and the VCLT gives preference to textual interpretation, as discussed above.33 There might be difficulty when also looking at Article 30 of the Rome Statute, which describes a “knowledge” standard for the mens rea.34 There are arguments made that the higher actus reus standard should be balanced with a lower mens rea standard because not only do some MPC jurisdictions do it that way, but also that raising the mens rea will essentially defeat the purpose of the statute.35 However, it would still be in the best interest of the ICC to limit its jurisdiction over these types of claims and adopt a stricter mens rea requirement.

Looking at the hypotheticals described above, instituting stricter mens reas would eliminate many of the more confusing, and possibly more criticism worthy, scenarios. For example, adopting a stricter mens rea would almost entirely eliminate scenarios in which states could be liable for the sale of goods or arms to another state. In the example stated above, State C could only be liable if it purposely sold arms to State A for their use in the crime of aggression. This would make it much less likely for State C or its actors to be considered criminally liable. Other tough scenarios, like deciding whether not to hold foot-soldiers liable, would also be limited, since most foot-soldiers act according to orders, and it would be difficult to find them criminally liable if they had to have the express purpose of assisting in a crime of aggression.

B. The Pros and Cons to a Limited Approach

Adopting a higher standard for the actus reus and mens rea for aiding and abetting a crime of aggression would have benefits for the ICC. The ICC, in its quest to establish itself as a legitimate international organization, needs to ensure that the international community at large thinks positively of it. Ensuring that it has a positive reputation in the community will allow the ICC to actually function and fulfill its duties much easier.

It would be in the ICC’s best interest to have as many people ratify the Rome Statute as possible. Doing this would allow them to increase their jurisdictional reach which, although I argue later that applying their jurisdiction too extensively would not be positive for the court, enjoying increased jurisdiction and using that power to indict legitimate war criminals would add a lot of international legitimacy to the court.

However, smaller, less powerful states would be more likely to ratify the Rome Statute and accept the legitimacy of the ICC if they knew they could not be held liable for aiding and abetting crimes of aggression. Many of the smaller states have an issue with how the ICC has thus far exercised its jurisdiction, with many African states threatening to withdraw from the Rome Statute.36 Many of these states believe that the ICC is simply a “tool for global power politics,”37 and the ICC extending its jurisdiction for crimes of aggression wider than already established would just confirm this to them. Instead, the ICC should confirm that it is not just an extension of Western power and not extend the reach of a highly-politicized crime much further than necessary.

Having smaller states ratify the Rome Statute is important, but having the big, powerful states like the United States and China ratify the Rome Statute could go a long way in giving the ICC legitimacy as well. Although it may seem very unlikely that the United States38 or China39 would ever sign the Rome Statute as it stands, extending aiding and abetting liability further than it already stands would push the United States and China even further. Adopting a soft requirement would disrupt legitimate arms trade. The United States has already expressed its distaste in the politicized nature of the crime, and extending aiding and abetting liability could legitimately spell the end of humanitarian intervention.40 If the goal of the ICC is to gain legitimacy, part of its future plan must involve getting these states to sign on. Many of these states already have an issue with the language of the statute, and extending liability further will damage the ICC’s efforts.

There are, of course, arguments to be made that fall in favor of creating a standard for aiding and abetting that is more similar to the ICTY’s softer standard. A soft standard, many will argue, will actively deter the aiding and abetting of crimes of aggression. Especially in the ICC, meant to be a court of last resort for serious crimes, extending liability may mean that some individuals second guess their actions if they know they could be liable. This is a sound argument, but one that is outweighed by the possible harm that can be done to the future of the court if a stringent aiding and abetting standard is not adopted.

Again, the ICC must be sure not to overstep its powers in adjudicating the crime of aggression, especially when attaching aiding and abetting liability. As shown in the ICTY, there will be aiding and abetting charges to go through, especially knowing that the statutory language of the crime of aggression is broad. Being that this, as described by Jamison S. Borek, is “fundamentally a crime of States, as to which the Security Council would have to play a central role,”41 it would be prudent for the ICC to adopt a more stringent standard as to not push this inherently political crime too far. Pushing it too far would only push states that already feel as though the ICC is just an organization meant to extend global power politics even further away from the ICC. If the ICC plans on continuing its quest for legitimacy in the international sphere, a good first step would be making sure not to alienate states that have already signed on to the Rome Statute. Adopting a stricter standard will also leave more room for the United States and other power states to join, who may have issues with how far the extension can push into activities like wars of liberation and humanitarian intervention efforts.

V. Conclusion

The ICC will have to decide how stringent of a standard for aiding and abetting it wants to set in the near future. With the recent introduction of crimes of aggression into their jurisdiction, the ICC now has a significantly tougher task ahead of them, with a much wider, more vague crime possibly leading to more situations in which an individual could be liable for aiding and abetting.

In order to maintain its legitimacy on the international stage, the ICC should adopt a strict standard for aiding and abetting in future cases. Adopting a similar actus reus to that of the ICTY will allow the ICC to limit the number of aiding and abetting cases it can hear. Adopting a “purpose” mens rea will have a similar effect.

Adopting stricter guidelines in these situations will allow the ICC to keep the crime of aggression as un-politicized as possible. The ICC will still be able to have jurisdiction over crimes of aggression without having to indict a wide range of people who would fall under the umbrella of aiding and abetting. Doing this will allow the ICC to maintain its relationship with many of its member states, while also keeping the possibility open of other states joining in.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Assembly of State Parties, The Crime of Aggression, RC/Res.6 (Jun. 11, 2010) [hereinafter Kampala Amendments], available online. ↩

2. 2.

   Id. ↩

3. 3.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 25 available online. ↩

4. 4.

   Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Enacted by UNSC Resolution 827, S/RES/827, 25 May 1993, at 6, available online (as amended Sep. 2009). ↩

5. 5.

   Barbara Goy, Individual Criminal Responsibility Before the International Criminal Court: A Comparison with the Ad Hoc Tribunals, 12 Int’l Crim. L. Rev. 1, 59 (2012), available online. ↩

6. 6.

   The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998), available online [hereinafter Furundžija]

   (Held that Furundžija was guilty of aiding and abetting outrages upon personal dignity as well as torture).

   See also The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgment on Appeal (Jul. 29, 2004), available online [hereinafter Blaškić]

   (Held that Blaškić was guilty of crimes against humanity for ordering attacks and not taking measures to prevent or punish crimes committed by his subordinates). ↩

7. 7.

   Goy, supra note 5, at 59. See also Furundžija, supra note 6, ¶¶ 234–235; Blaškić, supra note 6, ¶ 454. ↩

8. 8.

   Goy, supra note 5, at 60. See also Furundžija, supra note 6, ¶ 243. ↩

9. 9.

   Goy, supra note 5, at 59. See also Blaškić, supra note 6, ¶ 46. ↩

10. 10.

    Goy, supra note 5, at 59. See also Blaškić, supra note 6, ¶ 48. ↩

11. 11.

    Goy, supra note 5, at 60. ↩

12. 12.

    Goy, supra note 5, at 60. See also Blaškić, supra note 6, ¶ 48. ↩

13. 13.

    Goy, supra note 5, at 60. See also Blaškić, supra note 6, ¶ 48. ↩

14. 14.

    Guido Acquaviva, Aiding and Abetting International Crimes and the Value of Judicial Consistency: Reflections Prompted by the Perisic, Taylor, and Sainovic Verdicts, 1 Questions Int’l L. (Jun. 1, 2014), available online. ↩

15. 15.

    Goy, supra note 5, at 61. See also Blaškić, supra note 6, ¶ 45. ↩

16. 16.

    Goy, supra note 5, at 61. See also The Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, Case No. IT-04-84-A, Judgment on Appeal, ¶ 58 (Jul. 19, 2010), available online. ↩

17. 17.

    Rome Statute, Art. 25(C)(3). ↩

18. 18.

    Id. ↩

19. 19.

    Anna Olofsson, Aiding and Abetting International Crimes—In the Light of International Legal Pluralism, Thesis for Stockholm University, at 41 (2016), available online. ↩

20. 20.

    Id. at 42. ↩

21. 21.

    Rome Statute, Art. 25(C)(3).

    (In criminal law, a mens rea of purpose, which is adopted in the Rome Statute, is higher than that of knowledge, found in the statute for the ICTY and other international tribunals. Further, the mens rea requirement in the ICTY was further softened by the lack of a requirement that the accomplice share the same mens rea as the principal, meaning that to be liable for aiding and abetting in a genocide, one does not have to have the specific intent that the principal needs). ↩

22. 22.

    Rome Statute, Art. 30. ↩

23. 23.

    Rome Statute, Art. 25(C)(3). ↩

24. 24.

    Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online.

    (Article 31 states that preference shall be given to the ordinary meaning of terms in the treaty when it is being interpreted. However, a treaty can also be interpreted through any relevant rules of international law applicable). ↩

25. 25.

    Id. ↩

26. 26.

    Id. See also Model Penal Code, ALI (1962), available online.

    (For an example of a state using a “purpose” mens rea). ↩

27. 27.

    Rome Statute, Art. 30. ↩

28. 28.

    Kampala Amendments, supra note 1. ↩

29. 29.

    Id. ↩

30. 30.

    Rome Statute, Art. 25(B)(3). ↩

31. 31.

    The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, ICTR-96-10-A & ICTR 96-17-A, Judgment on Appeal (Dec. 13, 2004), available online.

    (Affirmed that Ntakirutimanas were liable for aiding and abetting in genocide after selling weapons to a group that had the appropriate mens rea for genocide and made their intentions known). ↩

32. 32.

    Goy, supra note 5, at 62–63. ↩

33. 33.

    Vienna Convention on the Law of Treaties, supra note 24. ↩

34. 34.

    Rome Statute, supra note 27. ↩

35. 35.

    Olofsson, supra note 19, at 43.

    (Olofsson disagrees with this sentiment, however, and does not believe that the ICC should follow the MPC, especially since the United States is not a party to the Rome Statute). ↩

36. 36.

    Franck Kuwonu, ICC: Beyond the Threat of Withdrawals, Afr. Renewal, May 16, 2017, available online. ↩

37. 37.

    Id. ↩

38. 38.

    David J. Scheffer, The United States and the International Criminal Court, 93 Am. J. Int’l L. 12 (1999), available online. ↩

39. 39.

    Bing Bing Jia, China and the International Criminal Court: Current Situation, 10 SYBIL 1 (2006), available online. ↩

40. 40.

    Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015), available online. ↩

41. 41.

    Id. at 258. ↩