With power comes responsibility. In their new duties, Trump administration officials will need to consider the legal hazards associated with supporting foreign military partners who commit international crimes. Perhaps most alarming to some officials will be the risk of personal criminal liability. When might this arise? The White House recently said it is open to cooperating with Russia to combat ISIL, and Rex Tillerson, in his nomination hearings, said the Syrian Kurds “have been our greatest allies … that we intend to continue to support.” What could possibly go wrong? Think about support for the Syrian Kurds and U.S. forces transferring detainees to them, or U.S. arm sales to the Saudi-led coalition in Yemen, or sharing intelligence with Russia to conduct operations in Syria. In some cases, the analysis may turn on whether the support makes a “substantial contribution” to crimes committed by the foreign partner—a key element for complicity under customary international criminal law.
The concept of complicity appears in multiple incarnations in international law (see this mini-symposium for a survey). In international criminal law, complicity doctrines allocate individual criminal responsibility in the face of collective violence, which depends on a division of roles and tasks among multiple actors. A complicity theory may also ensure conviction in situations in which a prosecutor cannot prove that the defendant possessed the heightened mental element (mens rea) associated with the underlying crime (e.g., a so-called specific intent crime), but can prove that the defendant knowingly rendered assistance to another perpetrator who possessed the requisite mens rea. In public international law, the term “complicity” is employed to ascribe responsibility to states that act via proxies or surrogates in the territories of other states or otherwise contribute to breaches of international law at the hands of non-state actors. Likewise, it can be relevant when states work in coalition together and one state breaches international law. Complicity doctrines also have the potential to ensure some measure of accountability when the primary perpetrator is out of reach of the relevant tribunal for whatever reason. For example, principles of foreign sovereign immunity may bar suit against a repressive foreign government directly but not against a multinational company engaged in a joint venture with the state. Likewise, while the United States cannot be brought before European courts or the European Court of Human Rights, individuals who have been subjected to extraordinary rendition have successfully filed claims against European states that played a part in their capture, detention, or transfer.
The plain text of the statutes of the original ad hoc international criminal tribunals did not provide much detail as to the elements of complicity liability; as such, it was left to the parties and judges to add content to these concepts through the identification of applicable customary international law. To do so, they looked to relevant precedent from the World War II period, the drafting history of various multilateral treaties, and general principles of penal law as exemplified in the world’s legal systems. Through this deductive process, the ad hoc tribunals developed a rich jurisprudence around complicity liability.
Substantial Assistance/Contribution
Articulations of the doctrine of complicity in international criminal law have long included a requirement that the accomplice’s acts of assistance make something akin to a “substantial contribution” to the substantive crime committed. Although the doctrine has been formulated in slightly different ways over the years by different tribunals, it is clear that this is a fact-based inquiry. The crux of the inquiry requires an evidentiary interrogation as to whether the defendant’s conduct or omissions made the charged crime more likely and/or whether the crime would have occurred in the same way had the alleged aider/abettor not acted in the way s/he did. Showing that the defendant exerted an actual influence on a crime committed is necessary, though not to the point of proving “but for” causation. The case law reveals that even limited involvement can have the requisite “substantial effect” on the commission of a crime, because the focus is on the impact of the defendant’s actions vis-à-vis the criminal conduct charged.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:01/26/2017