[Editor’s Note: This article is part of a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which was argued before the Supreme Court on Dec. 1. The introduction to the series and all other articles can be found here.]
The amicus brief by international law scholars, former diplomats, and practitioners in Nestlé USA, Inc. v. Doe I, filed Oct. 21, 2020, rightfully argues that secondary liability in the form of aiding and abetting is well-established in international law. The submission outlines a number of developments in the area of international criminal law that support this assertion. The brief refers, among other things, to post-Nuremberg jurisprudence and the cases adjudicated by the ad hoc and hybrid tribunals as evidence of a solid body of customary international law supporting the definition of aiding and abetting as knowingly providing substantial assistance to the principal perpetrator of the offense.
In addition, the brief mentions the Rome Statute governing the International Criminal Court (ICC), which also recognizes various forms of secondary liability. Two provisions are particularly relevant in this regard: Article 25(3)(c) of the Rome Statute establishes liability where the accused “for the purpose of facilitating” the commission of a crime “aids, abets or otherwise assists” in its commission; Article 25(3)(d) criminalizes knowing contribution to the commission of a crime by a group acting with a common purpose. The brief correctly points out some divergence in the formulation of aiding and abetting liability at the ICC and in the preceding jurisprudence.
This article focuses on Article 25(3)(c) of the Rome Statute and shows that despite certain differences in wording, the recent case law of the ICC points in the direction of a general customary international law standard for aiding and abetting. While some divergence between the law of the ad hoc tribunals and the law emanating from the ICC exists with respect to the requisite mental state of an accomplice, the factual analysis of each case yields the same conclusions as to what elements must be satisfied in order to establish complicity. In order to demonstrate the factual use of this mode of liability, this article scrutinizes the possibility of applying the ICC test for aiding and abetting to the actions of corporate officials.
Function and Meaning of Complicity
Prior to delving into the specific test for aiding and abetting at the ICC, it is important to create some linguistic clarity around the concept of complicity. Complicity is a doctrine that attributes criminal responsibility to certain individuals who do not physically perpetrate the crime. Thus, the essential function of this legal notion is to construct a link between the accomplice and the criminal act of another person.
This legal tool is indispensable because often, criminal harm occurs due to a concerted action of a number of parties with varying degrees of spatial and temporal proximity to the ensuing result. Some of the actors are involved in a direct way by perpetrating the crime, while others contribute by virtue of providing culpable assistance or encouragement to the direct perpetrator. The nature of assistance varies, making ‘complicity’ an umbrella term encompassing such actions as aiding and abetting, instigating, ordering, facilitating, soliciting, inducing and a number of other ways of possible engagement.
Different domestic jurisdictions provide for unique terminological landscapes with respect to these varying forms of complicity, while always retaining the functional core of the concept. It is due to its operative significance that complicity or its linguistic equivalents can be found in a variety of domestic jurisdictions across the world and in international law. The Rome Statute of the ICC is no exception in this regard as it lists in Article 25(3) such forms of complicity as ordering (25(3)(b)); facilitating (25(3)(c)) or contributing in any other way to a group (25(3)(d)) acting with common purpose to commit a crime within the Court’s jurisdiction.
Article 25(3)(c) Test
As in other jurisdictions, the test for complicity under the Rome Statute has several components. Pursuant to Article 25(3)(c) of the Statute, “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person (…) [f]or the purpose of facilitating the commission of such crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.” This formulation provides for several distinct elements that need to be established in order to prove secondary liability. They can be broken down into actus reus, or ‘conduct requirement,’ and mens rea, or ‘fault requirement.’ I prefer to use the latter terms in order to avoid terminological confusion with actus reus and mens rea of an underlying offence that need to be addressed separately.
The conduct requirement under this provision consists of facilitation in the form of aiding, abetting and assisting in other ways. The list of potential forms of support is thus open to interpretation in the light of the factual circumstances of the case. Interestingly, the qualifier ‘substantial’ adopted in the jurisprudence of the ad hoc tribunals is missing from the description of the nature of contribution in the Rome Statute. Different Trial Chambers at the ICC disagreed in the past as to whether the requirement of substantial contribution is implicit in the definition under Article 25(3)(c). The most recent pronouncement on the matter in Bemba et al. expressly rejects this qualifier, arguing that no specific quantative threshold is needed because of the causality requirement: the assistance must have facilitated the offence in some way, and, if it did not, it does not fall within the ambit of this provision.
While I agree with the Chamber’s conclusion that quantative assessment of contribution is not necessarily helpful in evaluating the nature of assistance, its engagement with causality is somewhat confusing because causality in its narrow understanding refers to causing events in the natural world rather than through another person. Given the general presumption in criminal law that principal’s actions are free and voluntary, it cannot be said that an aider and abettor ‘caused’ the actions of the principal. The Chamber is, however, correct in pointing out the need to establish some form of connection of assistance to the crime. Both the requirement of ‘causality’ and that of ‘substantial’ contribution refer to the same necessity of establishing the effect of the assistance on the crime, which can only be evaluated on a case by case basis and cannot be accurately defined in abstract terms. Therefore, arguably there is no clear divergence in customary international law on this point.
The second element of secondary liability under Article 25(3)(c) is the fault requirement, which can be broken down into two parts: the alleged accomplice’s attitude towards their assistance and their awareness of the ensuing harm. The condition of “purpose” is traditionally construed as departing from the standard of knowledge accepted as a requisite element of aiding and abetting liability in the jurisprudence of the ad hoc tribunals. The Bemba et al. Chamber clarified that “purpose” only refers to the accessory’s facilitation, not the principal offence. The ad hoc tribunals, on the other hand, require at least knowledge with respect to both facilitation and the ensuing offence (see, for instance, Vasiljević Trial Judgment, para. 71). There is therefore some divergence in the applicable standard of aiding and abetting in international law. Nonetheless, clarification that “purpose” only applies to the act of facilitation by the Bemba et al. Chamber narrows this difference.
ECCHR Communication to the ICC
Beyond specifying the contours of complicity liability in the Rome Statute generally, the Nestlé case requires an analysis of the international law on corporate accomplice liability. In interpreting the state of the law in this field, a recent communication by NGOs to the ICC is particularly helpful. The European Center for Constitutional and Human Rights (ECCHR) and other NGOs recently filed a communication with the Court that alleges potential complicity in war crimes by officials of several European companies supplying weapons to the Saudi/United Arab Emirates (UAE)-led coalition currently engaged in the armed conflict in Yemen.
With respect to the first element under Article 25(3)(c) – the conduct requirement – the ECCHR communication revealed the importance of furnishing factual proof of the linkage between corporate actions and the subsequent war crimes. In the case of arms supplies, this connection would be most easily demonstrated by producing evidence of the supplied munition found on the ground around crime sites. However, there are other ways to prove a connection sufficient to meet the conduct requirement. For instance, information on supply chains showing how specific weapons were ultimately used is helpful. Even in the absence of available data on supply chains, assistance may take the form of encouragement, which can be demonstrated by the continued nature of deliveries of weapons. If a corporate official continues to authorize such supplies over an extended period of time, while simultaneously providing for maintenance of the equipment already distributed, one may conclude that the fact of such engagement is a form of encouragement or moral support, at the very least.
Secondly, the fault requirement, which is twofold, can be demonstrated by showing some level of awareness of crimes resulting from the furnished assistance – in the case of the ECCHR communication, war crimes committed in Yemen – and a purpose to facilitate these crimes. The first element of general awareness can be easily demonstrated by the plethora of publicly available documents relating to the conflict. However, one may rightfully raise a question regarding the specificity of knowledge: do corporate officials need to know the exact war crime to be committed using their supplied equipment or is general awareness sufficient in this respect?
The Furundžija Trial Chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that awareness of one of a number of crimes that will probably be committed is sufficient (para. 246). The test of specificity of accessorial knowledge is therefore whether the offence committed was within the contemplated range of offences. A concept of “willful blindness” developed in U.S. v Campbell may also be helpful in approaching the first element of the fault requirement under Article 25(3)(c) to show awareness of the crimes for corporate officials in light of publicly available information. The Fourth Circuit Court of Appeals in Campbell referred to the situation in which “a defendant deliberately closed her eyes to what would otherwise have been obvious to her. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge.” Knowledge was therefore established by inference.
The second element of the fault requirement, namely the “purpose to contribute” is arguably more difficult to prove with respect to the actions of corporate officials. While it is true that shared intent is not needed as per Bemba et al. clarification, it can still be evidentially challenging to prove that corporate officials made a conscious choice to contribute to the crime as opposed to having mere awareness that their contribution helped in some way. It is important to note that the “purpose” requirement does not demand that facilitation of the crime be the sole purpose of the actor; an accomplice may act out of financial interest as their primary purpose.
Therefore, seeking financial gain for corporations can factually attest to the existence of a mental state in which the actor voluntarily and consciously chose to contribute to the conduct in question. Not only is there awareness of the crimes – as is the case with corporations knowingly continuing their operations despite readily available information on gross human rights or humanitarian law violations – there is the motive of financial gain, which is practically translated into the renewal of contracts with the parties actively engaged in the criminal conduct.
To sum up, the ECCHR communication raised a number of pertinent corporate complicity questions, such as the degree and specificity of knowledge of corporate actors and the nature of connection between the crime and the assistance rendered. It is clear that the standard of complicity enshrined in the Rome Statute is applicable to the actions of corporate officials as it has capacity to reflect on the peculiarities of patterned conduct (continuous supplies) and the purpose of seeking financial gain. Both aspects are characteristic of corporate complicity in general, making the lessons from the ECCHR communication relevant to the Nestlé case.
The application of the test for aiding and abetting criminal conduct is still in development in both ICC and other international jurisprudence. While it is clear that some divergence exists between the test of “knowing substantial contribution” developed by the ad hoc tribunals and “purposeful contribution” of the ICC, there exists a clear thread harmonizing these two conceptualizations. Firstly, the function of complicity as a mode of liability attributing responsibility to those who do not directly perpetrate the crime is retained. Secondly, the conduct requirement of “contribution” having some effect on the crime is comparable in both definitions. One may even argue that the absence of a quantitive qualifier of “substantial” at the ICC is somewhat compensated by the enhanced fault requirement of “purpose.” Thirdly, a conscious choice to contribute, or “facilitating for the purpose of commission,” may in practical terms be established based on the same factual evidence as knowingly contributing to the crime. In sum, both the ICC and the ad hoc tribunals have well-established secondary liability jurisprudence and, despite some differences in the formulation of the legal standards, complicity liability is firmly rooted in international criminal law.
Image: SANA’A, YEMEN – A child displays a part of the alleged missile that hit a bus carrying tens of children leaving dozens dead on August 9, 2018 in Saada, Yemen. Subsequent investigations have established that US-made munitions were found among the shrapnel on the scene. (Photo by Mohammed Hamoud/Getty Images)