“Specific Direction” is Indefensible: A Response to Heller on Complicity

[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.]

Last week, Kevin Heller posted an insightful and provocative defense of the “specific direction” standard for aiding and abetting the ICTY has newly announced in the Perišić and Stanišić cases. Although I believe that his arguments fall well short of justifying the conclusion he endorses, his argument intelligently brings together many of the intuitions that seem to have shaped this new definition of complicity. It is also a credit to Kevin that he agreed to post my earlier two-part criticism of this novel definition of complicity here and here despite harboring contrary intuitions, and that he generously welcomed this further response now. All of this out of an obvious commitment to even-handedness and frank debate. But with praise for my friend aside, let me move to criticize aspects of his argument that I believe defend the indefensible.  

At the outset, I am concerned by the structure of Kevin’s reasoning. Kevin (and apparently the ICTY judges he supports) seem to reason inductively, taking the putative innocence of weapons transfers by American and British governments to Syrian rebels as a point of departure. Although I’m sure Kevin just means to use a well-known contemporary example to illustrate his concerns, the optics are bad for him and the ICTY—by backing into this issue with the a priori assumption that American and British practices are necessarily beyond reproach, the reasoning risks substantiating views (so common now among African leaders and TWAIL scholars) that the discipline is structurally biased. To preserve the impartiality and therefore legitimacy of international criminal law, surely we should start with a morally defensible concept of complicity, then let responsibility attach where it may. Otherwise, the new “specifically directed” test speaks to darker problems that infect the entire system.

Also on a preliminary level, I think organizations are a red herring here. Kevin argues that the “specific direction” was “absolutely correct… in the context of organizational criminality.” But is the ICTY really attempting to craft a new law of complicity applicable uniquely to situations where individuals assist organizations, vaguely akin to that curious provision in Art. 25(3)(d) of the ICC Statute? I think not. The ICTY is clearly adding a new element to the one and only notion of aiding and abetting it applies. I concede, of course, that the Perišić Appeal Judgment refers to organizations in a smattering of instances, but there is no real sense in which it is creating a breakaway standard that leaves a co-existing idea of complicity simpliciter intact. And what makes organizations so special anyway? Kevin offers no reason why the organization is normatively significant and I see none—an individual can also use one and the same weapon for both innocent and illegal purposes, so the organization adds nothing of conceptual significance to the analysis. In fact, I worry that it just masks baseless judicial lawmaking.

I also fear that, when considered against a careful assessment of complicity’s content and its intersection with other criminal law, Kevin’s arguments overshoot the target by some distance. He argues that without this “specifically directed” standard, American and British supply of weapons to Syria rebels would constitute complicity in resulting crimes. Thus, individuals wishing to interact with these rebel groups would be put “in an impossible situation,” such that they “cannot provide the organization with any assistance at all.” But at least two basic features of accomplice liability and one component of blame attribution writ large, expose both these statements as serious hyperbole. On a robust account of complicity, American and British governments could assist the Gestapo, the Interahamwe, the Taliban, Syrian rebels and any other bloodthirsty armed group without becoming complicit in their international crimes in at least three ways. In what follows, I explore each of these, before speaking to a fourth significant possibility.

First, those wanting to assist terrible groups of all descriptions can do so, provided the assistance does not cause international crimes. In a previous project, I spent long hours contemplating the role of causation in international criminal law, precisely in order to understand its significance for the accomplice liability of arms vendors. In that research, I used the notorious arms vendor Viktor Bout as an illustration, but one could probably substitute any of these ICTY accused without unduly compromising the legal issues. One of the more obvious upshots of these investigations is this—causation matters for responsibility in international criminal justice—without it, there is no accomplice liability for international crimes. Foreign governments are perfectly free, then, to provide any type of assistance to even genocidal organizations, provided that the assistance does not cause international crimes. In essence, it is simply inaccurate to argue that every act of assistance renders one complicit in an international crime—as I showed in my earlier posts, not all assistance leads to atrocity.

Second, complicity does not capture minor assistance, even if it does contribute to atrocity. In my earlier post, I pointed out how theories of accomplice liability exclude de minimus causal contributions. The standard refrain before the ICTY, for example, is that the aider and abettor must have a “substantial effect on the commission of crimes.” As I showed, others prefer the terms “remoteness,” “harm-within-the-risk” and objektive Zurechnung (normative attribution). Admittedly, these concepts are relatively elastic in reach, but they do unequivocally refute the claim that an individual is responsible for all crimes committed by every organization it assists. To take an example from responses to Kevin’s blog, the International Committee of the Red Cross (ICRC) might make a miniscule causal contribution to some downstream international crime by tending to Taliban sick and wounded, but this contribution is most certainly insubstantial and therefore innocuous when processed as a possible act of complicity. There was, therefore, no real problem for this terrible cure to remedy.

Third, in appropriate circumstances, invoking necessity as a justification would also exonerate the would-be accomplice. Providing weapons to those who use them to commit an international crime may be justified if doing so prevents a significantly more serious atrocity. In my earlier post, I drew on a famous English case called Gillick, where 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. As I mentioned, leading British scholars, from Andrew Ashworth to David Ormerod, have argued forcefully 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. Kevin’s argument runs counter to this expert opinion, using intuitions that are usually addressed in a separate part of the criminal law to endorse a broken notion of complicity.

Let me say a more about how the justification of necessity, or choice of evils, might function in the Syrian context, since it reveals important moral principles the “specific direction” standard bulldozes over. In broaching the question of necessity, courts would discriminate between: (a) providing Syrian rebel groups with weapons (knowing that they will lead to some international crimes) in order to prevent bloodletting of civilians on a massive scale; and (b) furnishing the same weapons (knowing that they will lead to some international crimes) in order to trial cutting edge military technologies in a battlefield setting. Clearly, the rationale for the assistance matters enormously in ascribing moral and criminal responsibility, but the new “specific direction” standard Kevin too quickly defends is simply indiscriminate, exonerating (a) and (b) equally. This stance undermines the very purpose of necessity as a justification, fails to calibrate criminal and moral responsibility, and leads to the acquittal of individuals who provide substantial assistance to armed groups in order to promote a Greater Serbia, facilitate ethnic cleansing and settle old scores.

This leaves a fourth possibility—would-be accomplices can simply refuse to help. Choosing not to supply weapons, for instance, to a notoriously brutal regime is constitutive of a genuine moral choice, further discrediting Kevin’s thesis that complicity generates a kind of moral paralysis. In fact, a coherent notion of complicity, situated within a broader body of criminal law, only requires this refusal in morally appropriate circumstances. Where the form of assistance would make a substantial and unjustifiable causal contribution to an atrocity, it is very appropriate to demand that the potential accomplice desist. We are not talking about minor moral transgressions! So, by citing arms transfers to Syria without mentioning causation, substantiality, necessity or the possibility of simply declining to assist, Kevin’s argument takes a highly provocative but overly categorical position that is not sensitive to core concepts in the criminal law, the history of complicity most everywhere, and wider notions of blame attribution. In truth, the “specific direction” anomaly is not just indefensible in law and principle, it marks a regrettable setback in the struggle for basic moral responsibility. History, I suspect, will not be kind.

My thanks, once again, to Kevin for posting my various thoughts on this topic. I hope my strong sense of injustice offers no offense to him. It will always be a great privilege to have such a smart friend and colleague, especially when he disagrees with me.