Complicity in International Criminal Law

Marina Aksenova

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509900091
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

This book tackles one of the most contentious aspects of international criminal law – the modes of liability. At the heart of the discussion is the quest for balance between the accused's individual contribution and the collective nature of mass offending. The principle of legality demands that there exists a well-defined link between the crime and the person charged with it. This is so even in the context of international offending, which often implies 'several degrees of separation' between the direct perpetrator and the person who authorises the atrocity. The challenge is to construct that link without jeopardising the interests of justice. This monograph provides the first comprehensive treatment of complicity within the discipline and beyond. Extensive analysis of the pertinent statutes and jurisprudence reveals gaps in interpreting accessorial liability. Simultaneously, the study of complicity becomes a test for the general methods and purposes of international criminal law. The book exposes problems with the sources of law and demonstrates the absence of clearly defined sentencing and policy rationales, which are crucial tools in structuring judicial discretion. Awarded The Paul Guggenheim Prize in International Law 2017!

1

Introduction

COMPLICITY IS A notoriously difficult legal notion to grasp. KJM Smith wrote: ‘Surveying complicity’s hazy theoretical landscape can, depending on the commentator’s nerve, temperament, and resilience, induce feelings running from hand-rubbing relish to hand-on-the-brow’.¹

Complicity is a doctrine that attributes criminal responsibility to those who do not physically perpetrate the crime.² Thus, its function is to construct a link between the accomplice and the criminal act of another person. This is not an easy task if one accepts the distinct moral importance of the perpetrator’s role.³ Criminal law is premised on the principle of individual autonomy that views individuals as rational persons responsible for their own acts.⁴ If the perpetrator is the one ultimately responsible for the act, why do we need to punish those who merely influence or aid him?

Smith referred to the difficulties of researching complicity in domestic law. Undertaking the same journey in the context of international criminal law presents even more challenging obstacles. Consider the following cases:

—The commander of the Bosnian Serb troops, positioned around Sarajevo during the siege of the city, does nothing to prevent the forces under his command from targeting—by shelling and sniping—the civilians trapped in the city. This situation lasts for 23 months. In this period, the commander remains passive: sometimes he decreases the level of attacks, only to increase them later. The commander’s complicity for ordering crimes perpetrated by the troops is established based on his lack of reaction to these crimes. There is no direct evidence that he ordered the attacks. The commander is sentenced to life imprisonment.⁵

—The most senior officer in the Yugoslav Army knowingly provides logistical and personnel assistance to the Army of the Republika Srpska, which is committing crimes in Sarajevo and Srebrenica.⁶ He is acquitted of aiding and abetting crimes against humanity, including murder, persecutions and attacks on civilians. The rationale for the acquittal is a failure to establish that the officer’s assistance is specifically directed at supporting the criminal activities, and not just aimed at winning the war.⁷

—The acting President of Liberia supplies financial aid and other forms of practical assistance to warlords in the neighbouring Sierra Leone, where he knows crimes are being committed on a large scale.⁸ He is convicted of aiding and abetting and planning murders, rapes and other acts of violence committed during the Sierra Leonean civil war. He is sentenced to 50 years’ imprisonment.⁹

—A pharmacy owner in Rwanda participates in a meeting where the demolition of a local church is discussed. Approximately 2000 Tutsi men, women and children are known to have taken refuge in this church. After the meeting, the businessman gets a bulldozer that is subsequently brought to the parish and used to demolish the church, crushing those inside.¹⁰ The businessman is sentenced to 30 years’ imprisonment for planning genocide and extermination.¹¹

These examples demonstrate the complexity of holding an individual complicit in crimes against humanity, war crimes and genocide. International criminality breeds an infinite number of factual scenarios; the accused range from local businessmen to the former (or acting) heads of state. Because international criminal law targets organized, large-scale offending, the distance between the accomplice and the harm is usually greater when compared to the regular domestic law situations. This peculiarity creates much room for inferential analysis as to the mental state of the accused and fosters creativity in the application of traditional legal doctrines. Different interpretations of the same doctrine lead to startlingly different results in each particular case—from life sentence to an acquittal.

The state of mind of an accomplice in mass atrocities presents another difficulty as it differs from the state of mind of a complicit individual in ordinary crimes. In the context of domestic law, criminality is a form of deviance from the norm. The principal perpetrator chooses to offend with the knowledge and understanding that he is defying the rules accepted in his society. The accomplice, for his part, takes a culpable decision to assist the principal. The responses of the domestic criminal justice system are consequently tuned towards ensuring conformity and preventing deviance.¹²

In contrast, participation in international crimes often stems from obedience rather than deviance. Political violence creates circumstances whereby authority is exercised to induce offending on the part of subordinates and creates a culture of impunity. Experiments aimed at testing human capacity to resist authority when put under pressure to perform acts going against human conscience show that on average, less than half of those tested were able to do so.¹³ As a consequence, the will of the principal perpetrator in international criminal law is frequently compromised—he becomes part of the system that makes it easier for him to offend than to desist. In contrast, the accomplice who occupies a senior position in the state or army apparatus may have more leeway than the foot soldier to resist authority and make the right choices. Thus, international criminal law modifies the assumption that the act of the principal has distinct moral importance: the accomplice is often more culpable than the actual perpetrator.

The purpose of this work is to explain what complicity means within the international criminal law context and to define the legal requirements of its various forms, as well as to delimit complicity from neighbouring concepts such as co-perpetration and common design.¹⁴ The book uses legal tools to tackle complicity. It must be noted, however, that the concept lies at the intersection of law, philosophy, human psychology, sociology and criminology. Under what circumstances an individual is responsible for the act of another person is a serious dilemma that can be approached from different angles.

The task of defining complicity is not an easy one—it creates much uncertainty. What elements should be included in the various forms of complicity? Is it possible to come up with a single formula for complicity that would suit the plethora of factual scenarios in international criminal law or is this an unattainable goal? Do we need to distinguish between different forms of liability at all? And if so, why? The quest for complicity and its consequences also inevitably raises questions relating to the general nature of international criminal law, its sources and its punishment rationales. Thus, complicity serves an additional function in this book: it is used as a test to assess the method and purposes of international criminal law.

Four main points will take shape on the basis of the discussion in the subsequent chapters:

1.Crafting a blanket provision defining complicity does not appear feasible in international criminal law. A single formula that would magically assist in the attribution of individual criminal responsibility to those removed from the crime is akin to a Kafkian castle—an unachievable objective.

2.Having said this, it is essential to define most comprehensively the constituent elements of the various forms of complicity—the conduct requirement and the fault requirement. Thoroughly researched doctrine serves as a solid basis for the subsequent evaluation of facts.

3.Complicity in its various manifestations is a useful tool in describing the conduct of the accused in the most accurate terms. It has the advantage over its alternatives—extended co-perpetration and joint criminal enterprise—of being deeply rooted in domestic criminal law and thus enjoying more acceptance and legitimacy at the national and international levels. This is so because complicity as a ‘general principle of law’ has a solid foundation in the sources of international law, while its alternatives do not enjoy the same status.

4.The key to the successful application of various forms of complicity is a careful balancing of its different elements on the basis of the facts of the case: in instances when the accomplice is in the physical proximity to the unfolding atrocities, his culpability may be inferred from the surrounding circumstances, while his contribution to the crime needs to be spelled out in detail—mere presence at the scene is not sufficient to attract criminal responsibility. In cases where the accomplice is removed from the principal perpetrator—in time or in space—the emphasis should be on the accomplice’s guilty state of mind. The more tenuous the connection between the accomplice and the crime, the less an inferential analysis of his mental state is to be allowed. In the end, it is the faulty choice to assist another in the commission of the crime that makes accessory participation punishable.

The following chapters explore complicity from various angles. Chapter two supports one of the main claims of this book, namely that systematic analysis of domestic law may enhance the coherence and legitimacy of international criminal law. There is a notable trend in international jurisprudence to disregard traditional forms of liability in favour of newly developed concepts that are not expressly provided by their respective statutes.¹⁵ This paradox served as an inspiration for the comparative analysis of complicity in various domestic jurisdictions around the world in an attempt to find the roots of complicity and to legitimise this concept in an international arena.

Complicity in one form or another appears to be recognised by all legal systems under review. The comparative exercise is instructive for two reasons: first, it grounds complicity, in legal terms, as a ‘general principle of law’;¹⁶ and, second, it helps to reach a deeper understanding of what distinguishes complicity from perpetration.¹⁷ From the overview of domestic legal systems, it becomes clear that international courts at times ‘cherry picked’ particular features of the various modes of participation in different legal orders in an attempt to create a form of criminal responsibility best suited to international criminal law.¹⁸ Whether such ‘cherry picking’ is appropriate in lieu of the comprehensive analysis of different approaches is a relevant question.

Chapter three turns to international criminal law proper. It discovers the historical origins of complicity in international criminal law—a field of law that, from its very inception, has struggled with the attribution of individual responsibility for collective wrongdoing. The discussion focuses on different mechanisms of addressing the collective dimension of international crimes, including complicity. A historical perspective also showcases the importance of domestic criminal law in shaping modern international criminal law.

Chapter four investigates how the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL) use complicity in their case law. It also touches upon the ‘competing’ concepts designed to address crimes with multiple accused. This overview reaches the conclusion that there are some gaps and inconsistencies in the understanding of complicity by these judicial bodies. The problematic aspects include the lack of sufficiently defined standard of causation and loose connection between the facts of the case, the elements of the substantive crimes and the legal requirements of liability modes.

Chapter five discusses complicity in th...

Table of contents

• Cover
• Dedication
• Title Page
• Contents
• Table of Cases
• 1. Introduction
• 2. Origins of Complicity: The Domestic Law Intake
• 3. The Evolution of Complicity as a Construction for Dealing with Collective Criminality
• 4. Complicity in the Jurisprudence of the Ad Hoc Tribunals and Hybrid Courts
• 5. Complicity and the Hierarchy of the Participation Modes at the International Criminal Court
• 6. Complicity in International Criminal Law and Law of State Responsibility: A Comparative Analysis
• 7. The Correlation between Complicity and Sentencing
• 8. Conclusion: The Place of Complicity in International Criminal Law
• Appendix I: National Legislation on Complicity
• Appendix II: The Correlation between the Forms of Liability and Sentencing
• Bibliography
• Index
• Copyright Page