Recently, a number of studies have been published on complicity in international criminal law. In 2014, Neha Jain published a study on Perpetrators and Accessories in International Criminal Law. More recently, Marina Aksenova published a book on Complicity in International Criminal Law. As the titles of both books suggest, the main focus is on international criminal law (ICL). Aksenova, by way of contrast to individual complicity, does dedicate a chapter to State complicity.
Miles Jackson’s work, published in 2015, entitled Complicity in International Law takes a broader and a narrower approach than the books of Jain and Aksenova. While the latter conduct in-depth comparative criminal law analysis, Jackson’s focus is narrower; it is firmly on the international concept of complicity, as the title of the book appropriately suggests. His approach is broader in that, alongside individual complicity, he discusses State complicity. In comparative law terms, this could be qualified an ‘internal’ comparative analysis; discussing a legal concept of a different nature (criminal/individual v. civil/state) but within the same legal system: international law. This terminology is however misleading bearing in mind international law’s pluralist nature. The cross-disciplinary analysis of complicity, across ICL and IL, is more ‘external’ than any ICL-domestic criminal law comparison. And this is exactly the intriguing feature of the book: the juxtaposition of individual and state complicity. Do these concepts have enough in common to be usefully discussed within one and the same analytical framework? It is interesting to note that Helmut Aust in his fine and thorough study on Complicity and State Responsibility does not, by way of analogy, touch upon individual complicity in international law. Having said that, the fact that an emerging strand of scholarship approaches questions on international legal responsibility from a ‘shared perspective’ may be sufficient justification for this cross-disciplinary approach.
Leaving aside the question of the suitability (or not) of a juxtaposed analysis of individual and State complicity, I welcome it since it comes with new insights. Jackson sheds new light on a concept that, in the area of ICL, has been subject to much debate since the Perišić decision by the ICTY [for the debate see here]. Moreover, the analysis certainly contributes to a further sophistication of the concept of State complicity (p. 132).
In the following, I will limit myself to reflecting on the first point: new insights. There are at least two. First of all, the analysis of the ‘wrongness’ of complicity (section 2.3). By discussing English tort law, Jackson highlights the different policy reasons that lie behind the idea of complicity. Societal interests, special protection from third parties, and the wrongdoing of the third party justify an exception to the rule that a breach of contract only concerns the parties to the contract. Complicity may provide for a remedy against a third complicit party who induces a party to breach the contract. This very interesting venture into English tort law, which with regard to the pacta tertiis rule make it relevant for state responsibility under Art. 16 of the ARSIWA (p. 165-167) makes clear that complicity rules are not “monolithic” (p. 17). Indeed, complicity may protect very different interests and serve a variety of policy goals. This is an important conclusion bearing in mind the ongoing debate on the scope of complicity in ICL, in particular with regard to the fault requirement of aiding and abetting international crimes. The ICC in Art. 25(3)(s) of the Statute, requires the person who assists, aids or abets the commission of a crime to act with the purpose of facilitating the base crime (purpose-based approach). The test applied by the ad hoc Tribunals is broader: knowledge of the principal’s intent and of the essential elements of the principal’s crime suffices for criminal responsibility (knowledge-based approach).
In the case of Canadian oil company Talisman, sued before an American federal court for complicity in human rights abuses by Sudan, it was held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone”. The plaintiffs and amici curiae argued the opposite: knowledge was the appropriate fault element under customary international law. Currently, there is no uniform rule on the fault requirement of complicity in ICL. Domestic criminal law is divided. It depends on the policy objectives behind complicity whether a purpose or a knowledge test is applied. In the US, where both tests are employed, crime prevention has lead courts and legislators to adopt the broader knowledge-based approach. This is a compelling argument for regarding Art. 25(3) of the ICC Statute as setting too high a standard. Nicola Lacey, in a recent and brilliant study explains the role of policy in shaping the concept of criminal responsibility. To me this is an important but under-researched area in ICL and I welcome Jackson’s study, for highlighting the diversity of policy goals behind complicity. His cross-disciplinary approach and analysis of individual and State complicity allows this to enter the debate.
Another important insight Jackson’s study offer, concerns the structure of complicity. Jackson argues – and this is the normative claim at the heart of his book – that the accomplice should not be held responsible for the principal wrong but for his own contribution to that wrong. In other words, the principal’s wrong should not be imputed to the accomplice. ‘Imputational complicity’, which is the dominant model in most common law jurisdictions and in international law, may have certain advantages (no need to detail the particular role, more direct connection to harm, increasing the condemnatory element) yet there are principled objections against it. The principle of autonomy and agency, translating to respect for sovereignty and personal culpability, requires separate recognition of an accomplice’s contribution to wrongdoing. He argues, and I fully agree, with regard to both attribution of responsibility and sanctioning, there should be a clear differentiation between the accomplice’s wrongdoing (contribution to crime A) and the principal’s wrongdoing (crime A). Another principle that requires such differentiation is the principle of fair labelling. As Jackson writes: “in terms of the law’s declarative function, it is crucial to accurately label wrongdoing” (p. 20).
Jackson examines complicity in international law against the normative claim of differentiation/non-imputation. He scrutinizes the theory in three areas, each components of the prohibition of complicity in international law: i) conduct (contribution) ii) nexus (relationship between contribution-crime), and iii) fault (knowledge or purpose with regard to the principal’s crime). Complicity in ICL, he concludes, insufficiently differentiates between principal and accomplice wrongdoing and as a result does not fully respect principles of culpability and fair labelling. The lack of differentiation is particularly problematic in the context of the crime of genocide. A conviction for aiding and abetting genocide results in a conviction for genocide proper, a crime that comes with a particular stigma. Moreover, from a structural point of view, the special intent-requirement of genocide (the intent to destroy…a group) does not lend itself for imputation through the fault element of aiding and abetting-liability (knowledge). It is wrong, as is current practice, to punish the accomplice who knowingly sells the génocidaire a machete but lacking genocidal intent himself, for genocide. As I have argued elsewhere, such ‘imputation’ is only appropriate when the aider/abettor or participant in a joint genocidal enterprise is punished for participation in genocide.
Fair labelling is at the centre of the normative stance of this study. It is, therefore, somewhat surprising that the author does not further examine the meaning of the principle. Fair labelling is a somewhat enigmatic concept; its scope and justification have never been analysed in detail as Chalmers and Leverick submit in one of the few in-depth studies into the principle (to which Jackson refers without further discussing it). What might have been interesting is to explore whether fair labelling plays a different role in ICL than in public international law. This study seems to assume it does not but I imagine the more direct political and diplomatic consequences of condemnation of a State makes that fairness in labelling has another dimension in international law than in criminal law. Branding acts of wrongdoing as ‘criminal’ was exactly what defeated art. 19 of the Draft Articles on State Responsibility.
Miles Jackson has written an excellent study on complicity in international law. His theoretical framework introduces a richer account of participation in wrongdoing and the cross-disciplinary approach highlights the different interests that lie behind the prohibition of complicity. Equally admirable is the clear, eloquent and succinct way in which he wrote it all up. His work is a very welcome contribution to the literature on complicity and I cannot wait to read more of his work.