Guest Post: The ICTY Loses its Way on Complicity – Part 2

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.

In my earlier post, I voiced grave concerns with the ICTY’s recent decision on complicity in a case called Prosecutor v Momčilo Perišić (see here). In my earlier posting, I provided background to this seminal case and criticized the new notion of “specific direction” as an actus reus element of complicity. In this second posting, I discuss how the concerns that animated the Appeals Chamber are better considered within the confines of the mental element required for complicity. Some of the judges in Perišić share this intuition—in their Separate Opinion, Judges Agius and Meron indicate that they might be willing to consider “specific direction” as a component of mens rea if they were entitled to rewrite tribunal jurisprudence (Appeal Judgment, Meron and Agius Separate Opinion, para. 3). For myself, I doubt whether the rewrite required would be anywhere as far-reaching as that they have adopted, especially when the extant law governing the mental element of complicity already contemplates these issues.

International criminal courts and tribunals apply varying mental elements for complicity, including purpose, knowledge and recklessness (see here, pp. 36-47). In the Perišić case, the Appeals Chamber’s recourse to the “specifically directed” standard as an actus reus appears to be a reaction to the notion of reckless complicity i.e. awareness of a probability that assistance will lead to crimes. As such, its embrace of the “specific direction” standard as part of the actus reus could be read as a pragmatic attempt at restraining the scope of an over-inclusive mental element. Nonetheless, if elevating the mental element through the back door like this is the desired effect, it is arbitrary, unprincipled and unnecessary when more moderate interpretations of existing doctrine better account for the underlying concerns.

There are several better routes. First, it is surely better to consider the extent to which “probability” (the existing standard) demands a degree of specificity about the crimes that will result from the assistance in question. Note first how we get to probability. As the Appeals Chamber explicitly affirms, the mental element for complicity in customary international law is knowledge (Appeals Judgment, para. 48). But what does this standard mean? Clearly, it cannot mean knowledge with certainty, as we can almost never know the future with certainty (see here, pp. 40-41). So even if a member X of a criminal gang provides her terrorist colleague Y with a nuclear warhead for a very specific terrorist mission, X cannot know with certainty that a crime will transpire. In addition, in order to constitute complicity, the assistance must always have an effect ahead of time. Accordingly, if complicity has any role whatsoever, knowledge must mean some degree of probability. The question is, what degree? The Appeals Chamber’s concerns are far better channeled towards this question, instead of appending new requirements to the actus reus of complicity in ways that unsettle the doctrine.

How might this definition of “probability” look in practice? At first blush, one might be tempted to say probability means awareness of a probability of events as they actually transpired in the crime at issue. So, the accomplice would need to supply AK-47s in the awareness that they would probably lead to baby A’s death, at 3:34pm on a Thursday, when troops use the AK-47s to open fired on an undefended civilian shelter. When this actually transpires, the accomplice is guilty (assuming all other aspects of the offence are satisfied). Nevertheless, we should be careful to avoid prescribing a test that is so pedantic as to exclude unimportant moral variations—what if baby A died two minutes later than foreseen, at 3:36pm? Surely, the variation changes nothing. So, the real question the Appeals Chamber should have discussed is what degree of precision “probability” connotes. This question, by no small coincidence, overlaps with the approach that courts in the United States, France, Germany and England adopt in evaluating such problems (see here, fn 143).

In appropriate circumstances, the Appeals Chamber could also find that providing the means used to commit atrocities was justified. In a famous English case called Gillick, the House of Lords was asked to consider whether doctors providing contraceptive advice to juveniles became complicit in statutory rape, even though their motives were laudable, namely to prevent sexually transmitted diseases and unwanted pregnancies. Like the ICTY Appeals Chamber in Perišić, the House of Lords contorted the mental element requisite for complicity in order to exonerate the doctors, but leading British scholars, from Andrew Ashworth to David Ormerod, have forcefully argued that this type of assistance should be treated as a justification, instead of allowing broad intuitions about guilt or innocence to corrupt the basic concept of complicity. Unfortunately, by overlooking this option, the Appeals Chamber appears to have done just this in the international sphere.

Finally, if all this still seems inadequate, the Appeals Chamber could also limit the application of reckless complicity to situations when recklessness would suffice for perpetration of the crime with which the accomplice will be convicted. To make this idea concrete, Perišić could be convicted as an accomplice of all of the crimes for which recklessness was sufficient for perpetration, but not persecution as a crime against humanity, since this latter requires a special purpose to discriminate that is not satisfied by a showing of mere recklessness. For all the other crimes, recklessness would suffice for perpetration, so why treat the accomplice any differently? As one prominent American theorist has suggested, using reckless as a standard for complicity where recklessness suffices for the crime in question would not imperil an individual’s autonomy or chill normal social interchange any more than reckless perpetration already does (see here, p 42). There are also good reasons why this point is especially true internationally.

Finally, a word about the wider context. In their briefs, Perišić’s lawyers skillfully argued that members of English, American and French governments could be held liable as accomplices on these interpretations of complicity for arming Libyan rebels, and that Russian officials might face a similar fate in Syria. I am far from certain that these cases would satisfy the more traditional concept of complicity I set out here, but if they do, I see no rationale for circumscribing the scope of defensible criminal doctrine. By the same token, should the ICTY suddenly redefine torture to accommodate practices that are now ubiquitous in the war on terror? This risks excessive deference to great powers, who are perfectly capable of violating the core moral precepts international courts have an obligation to dispassionately apply. Besides, the application of a morally fair, normatively coherent notion of complicity in these contexts could have salutary effects—if rebel groups in Libya or Syria cannot get weapons because their trusted suppliers fear complicity, perhaps these rebels will start to comply with the laws of war.

In sum, the Perišić Appeals Judgment leaves the law of complicity in a state of serious disarray. Without doubt, complicity is a difficult concept, national systems understand it inconsistently, and it engenders important consequences on a global stage. Despite this, its coherence in customary international law is dependent on the Appeals Chamber repudiating aspects of the Perišić Appeal Judgment that are so far from basic principles and so consequential for a raft of connected fields, from international criminal law itself to human rights and the laws of war. Perhaps, in its final hours, the ICTY will show the great moral courage required to admit that it lost its way in Perišić, and correct the oversight. In the grand scheme of things, this moral courage may prove to be a defining aspect of the Tribunal’s legacy, in sharp contrast with the depths of human darkness it has witnessed over the course of its otherwise remarkable lifetime.